Karnataka High Court
G.D. Mariswamy vs State Of Karnataka, By Its Dy. S.P. ... on 23 June, 2004
Equivalent citations: 2004CRILJ3584, ILR2004KAR3316, 2004 CRI. L. J. 3584, 2004 AIR - KANT. H. C. R. 2477, (2004) ILR (KANT) (3) 3316, (2004) 3 ALLCRILR 946, (2004) 6 KANT LJ 386
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. The appellant Mariswamy assailing the judgment of conviction and sentence passed in Special Case No. 23/93, dated 21.7.1998 by the learned Special Judge, D.K. Mangalore, for the offence under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 sentencing him to undergo R.I for a period of 3 years and also to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further R.I for a period of 3 months has come up with this appeal.
2. The case of the prosecution in brief is as follows.
The accused was working as Accounts Assistant in the office of the Karnataka SC/ST Development Corporation at Mangalore. It is the case of the prosecution that the complainant P.W.1, Dinakar had applied for a loan with Canara Bank and that an amount of Rs. 46,000/ - was sanctioned less the amount of subsidy that was to be granted by the Karnataka SC/ST Development Corporation, Mangalore. For claiming the subsidy P.W.1, Dinakar submitted an application as per Ext.P 1 dated 25.9.1992 and produced the caste certificate, estimation from Sri Rama Auto Works Ext.P 6, Invoice Ext.P 7 as well as Ration Card Ext.P 8. In that connection, he approached the accused Mariswamy to send the intimation to the Bank regarding subsidy. When he approached the accused on 2 or 3 occasions, the accused demanded illegal gratification of Rs. 500/- for sending the subsidy amount to the Bank and that he last approached the accused on 27.2.1993, who in turn told that if the amount is not paid, the same would lapse by the end of 31st March 1993 and that he has to wait for another 3 months. As he was not willing to pay the illegal gratification of Rs. 500/-, he approached the Lokayuktha Police and his statement was recorded as per Ext.P. 9.
3. The Lokayuktha Police secured two panch witnesses viz., Raghavendra Rao and Praveen Kumar (P.W. 2). The complainant produced 5 notes of Rs. 100/- denomination each. In the presence of panch witnesses, phenolphthalein powder was applied on the notes and it was given to the hands of Raghavendra Rao to keep it in the left side pocket of the Complainant and that an experiment was demonstrated to that effect by preparing an entrustment mahazar, Ext.P 10 on 19.3.1993 in between 12.15 p.m. and 1.15 p.m. The panch witnesses and the raiding party proceeded to the office of the Karnataka SC/ST Development Corporation located in the Deputy Commissioner's Office. On enquiry, they were informed that the accused has gone outside. Therefore, they returned to the Lokayuktha Office. The currency notes which were in the shirt pocket was removed and kept in a cover and a mahazar Ext.P 11 was prepared. The Investigating Officer instructed the witnesses to come on 23.3.1993. On 23.3.1993 a mahazar was prepared in the office of the Lokayuktha as per Ext.P 12. The notes were removed from the cover and kept in the left side pocket of P.W.I by Raghavendra Rao and they proceeded to the office of the accused. On 23.3.1993, the Complainant and the witnesses approached the accused. When P.W.1 wanted to give the bribe amount, the accused told him that he has no time and asked him to come after 2 or 3 days. As the trap did not materialise, they returned to the Lokayuktha office and a mahazar was prepared as per Ext.P 13. Again on 26.3.1993 that a mahazar was prepared at the office of the Lokayuktha as per Ext.P. 14. The notes which were in the cover was put in the left side shirt pocket instructing him to give it to the accused only on demand and then, they proceeded to the office of the Karnataka SC/ST Development Corporation. The Complainant, P.W.2, Praveen Kumar and the Investigating Officer were keeping a watch. At about 10.30 a.m while the accused was entering the office, P.W.1, Dinakar went and met him and handed over the quotation and also the bribe amount of Rs. 500/-. P.W.I gave the pre- instructed signal. The Investigating Officer immediately rushed, took the accused inside the office, prepared the Sodium Carbonate solution and dipped the fingers of both the hands of the accused in the solution which turned into pink colour. The pant pocket was also washed which turned into pink colour. The Investigating Officer collected the relevant records and that a trap mahazar Ext. P. 15 was prepared in between 11.15 a.m. to 2.30 p.m. The Investigating Officer forwarded the material objects to the FSL for chemical examination and after completion of the investigation, filed charge sheet against the accused for the offence under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
4. The learned Special Judge secured the presence of the accused and framed charges for the above offences. The accused pleaded not guilty and claimed to be tried. The prosecution examined in all P.Ws 1 to 6, produced Exts.P 1 to P 27 and marked M.Os 1 to 10. The statement of the accused was recorded under Section 313 Cr.P.C. The defence of the accused is one of total denial. The accused did not choose to lead any evidence. The learned Special Judge for the reasons set out in his judgment, recorded a finding of guilt against the accused for the offence under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988, convicted and sentenced him to undergo RI for a period of 3 years and also to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further R.I for a period of 3 months. It is this judgment of conviction and sentence which is questioned by the accused in this appeal.
5. Learned Counsel Sri N.S.Venugopal appearing for the appellant-accused submitted that the accused is an Accounts Assistant in the office of the Karnataka SC/ST Development Corporation at Mangalore. As could be seen from the case file of the complainant, it shows that the loan application was put up by the accused. On his note, the Manager has ordered for sanction of the subsidy amount. Even the office has put up the papers for signature of the Manager, but the same was not signed as the Complainant did not furnish the stamp paper of Rs. 10/- denomination, revenue stamps, income certificate and the quotation. He has further contended that by the letters dated 1.1.1993 and 22.2.1993, the accused was called upon to produce the stamp paper of Rs. 10/- denomination, revenue stamps as well as the income certificate which has not been complied with. When the District Manager has not signed the sanction order, the accused doing any official favour as defined under Section 7 of the Prevention of Corruption Act, 1988 does not arise.
The learned Counsel secondly contended that the complainant has never approached the accused as stated by him on 27.2.1993 or on any day and at no point of time, the accused demanded any illegal gratification. In the complaint it is stated that he approached one Ravikumar, who instructed him to approach the Lokayuktha Police. The non-examination of the said Ravikumar goes to show that the complaint is an after thought and that it is not in the manner required and that it does not constitute the ingredients of Section 154 Cr.P.C. He has further contended that the recording of the complaint Ext.P 9 is in the form of Section 161 Cr.P.C statement. Therefore it appears, the prosecution has not marked the FIR.
That apart, the non-examination of the material witness Raghavendra Rao, the witness for entrustment mahazar and added to it, the non-examination of the Investigating Officer is fatal to the case. He has further contended that from the contents of Ext.P 9, it reveals that the complainant is not the author. To prove the fact of recording the complaint, the Investigating Officer is not examined. Therefore, it goes to the root of the case. According to the case of the prosecution on 19.3.1993, the Investigating Officer secured two panch witnesses viz., Raghavendra Rao and another Praveen Kumar (P.W.2). In their presence, the Complainant produced 5 currency notes of Rs. 100/-denomination and that it was smeared with phenolphthalein powder and the note numbers were recorded. Thereafter, an experiment was demonstrated in their presence and entrustment mahazar Ext.P 10 was prepared. He has further contended that it is the case of the prosecution that the panch witnesses proceeded to the office of the accused situated in the Deputy Commissioner's office, Mangalore specifically instructing the complainant to pay the amount on demand only and instructing P. W. 2, Praveen Kumar to watch and also to hear the conversation. When the Complainant and the panch witnesses and others went to the office, they did not find the accused. Therefore, it is stated that they returned. The amount which was kept in the left side pocket of the complainant was taken out and kept in a cover and it was sealed and the same was kept in the Lokayuktha Office. In this regard the learned Counsel vehemently contended that the mahazar Ext.P 11 is false and concocted. That on 19.3.1993 the accused has very well attended the office and that he was in the office and that the attendance register Ext.P. 17 shows that the accused Mariswamy was very well present. He has further submitted that to justify the contents of the mahazar Ext.P 11, the prosecution has not examined any of the witnesses from the office of the accused to establish the fact that he was not there. He has therefore submitted that the mahazar Ext.P. 11 prepared by the Investigating Officer is false and concocted as the accused in fact had not demanded any amount. He has also submitted that the truth would have come out if Ravikumar were to have been examined at whose instance the complaint came to be lodged.
He has further contended that it is the case of the prosecution that the complainant and the panch witnesses came to the office of the Lokayuktha on 23.3.1993. On that day, the Investigating Officer prepared the mahazar Ext.P 12 which shows that the sealed cover containing the notes was opened by the Investigating Officer. It was given to the hands of Raghavendra Rao. The said Raghavendra Rao kept it in the left side pocket of the complainant as per the instructions of the Police Inspector and thereafter, they proceeded. Learned Counsel submits that the sealed cover which was opened is not seized nor produced before the Court. Therefore, the Investigating Officer keeping the notes in the sealed cover is also doubtful. He has farther contended that according to the mahazar Ext.P. 13, it reveals that the accused was very well in the office discharging his duties. The complainant and P.W.2, Praveen Kumar who went inside the office were sitting on the bench and that they were waiting for a very long time. On his own, the complainant went near the accused and the accused asked him whether he has brought the amount. When the complainant wanted to remove it from his pocket, the accused told him that he has no time and that he asked the complainant to bring the quotation from Sri Rama Auto Works and that in the presence of the complainant the accused rang up to Sri Rama Auto Works to give him a quotation and asked him to come on next Friday. The mahazar further reveals that as the trap did not materialise, they all returned to the office of the Lokayuktha. The complainant handed aver the notes which was kept in his pocket. The said notes were put in a cover and sealed. Learned Counsel further submitted that Ext.P 14 shows that it was prepared on 26.3.1993 before proceeding to the office of the accused which reveals that the sealed cover was opened. Thereafter the notes were taken out and it was kept in the left side shirt pocket of the complainant by the witness Raghavendra Rao and that the Investigating Officer reminded the witness regarding the instructions given. The mahazar further shows that the complainant produced the quotation issued by Sri Rama Auto Works to the Police Inspector and that it was put in a cover and kept in the right side pocket of the complainant by P. W. 2 and that the complainant was instructed to hand over the quotation to the accused separately and thereafter to give the bribe amount if demanded.
The learned Counsel further contended that the alleged trap mahazar Ext.P 19 is nothing but a concoction. It is seen that while the accused was entering the office at about 10.30 a. m. he was stopped near the gate and was met. The accused asked him whether he has brought the quotation. The complainant told him that he has brought the quotation and the same was given to the accused by removing from the right side pant pocket. The accused received from his right hand and did not open it. Thereafter the accused asked whether he has brought the amount. He told that he has brought the amount. Saying so, he has removed the bribe amount and handed over the same to him. The accused received it from his right hand and put inside the quotation cover and kept it in his right pocket. Immediately, he gave the pre -instructed signal. The raiding party surrounded the accused, took him inside the office and prepared the trap mahazar.
Learned Counsel submitted that the very trap mahazar prepared shows firstly, the cover containing the quotation was given and according to the prosecution itself the notes given by the complainant were kept in the quotation cover. Therefore, there was no chance of the pant Pocket wash changing its colour. The learned Counsel further contended that the prosecution smearing the phenolphthalein powder on the quotation cover cannot be ruled out as the notes in question have been successively handled by the Investigating Officer as well as by the panch witness Raghavendra Rao. Therefore, the notes would not have been found with phenolphthalein powder. The learned Counsel lastly contended that there was nothing for the accused to do any official favour as he has done his part of the duty. Even the sanction order has also been kept ready for the signature of the District Manager. But for the fact the complainant did not produce the stamp paper of Rs. 10/- denomination for preparing the agreement, it was stalled. It is also clear from the records seized by the Police Inspector that the complainant was called upon to produce the stamp paper by 2 letters dated 1.1.1993 and 22.2.1993. This itself shows that it is the complainant who has not complied with the requirement by producing the relevant papers like stamp papers, revenue stamps etc., Learned Counsel also submitted that the sanction order is bad for the reason that the authority which issued the sanction order is not examined. Therefore, the mere production of the sanction order does not take the place of proof. He has also contended that the non-examination of the entrustment mahazar witness viz., Raghavendra Rao and further particularly, in this type of case, the non-examination of the Investigating Officer is fatal to the case of the prosecution and that the testimony of P.W.1 and P.W.2 is improbable and cannot be acted upon. He has also submitted that in the cross-examination, P.W.1, Dinakar has clearly admitted that he gave the quotation and the currency notes to the accused and the accused put them in a cover. Therefore, the complainant giving the quotation and the notes at different times cannot be accepted and that there is no truth in the case of the prosecution. The evidence of P.W.2, Praveen Kumar is also not reliable. He has further submitted that the evidence of P.W.6 Chandrakanth, the District Manager shows that the loan will be sanctioned after verification of the documents and that after the sanction of the loan by the Bank it will intimate to their office to pay the subsidy amount and the margin money. After such intimation, they collect from the applicant the revised quotation, two stamp papers of Rs. 10/- denomination, revenue stamps, hypothecation deed, promissory note, and the loan agreement. Therefore, in the absence of any execution of the agreement on the stamp paper and producing the same before the sanctioning authority, it cannot be said that the accused has to do or show any official favour. For the foregoing reasons, the learned Counsel submitted that the conviction and sentence passed by the learned Special Judge is based on presumptions and conjectures and the reasonings are perverse. Therefore, prayed to allow the appeal by setting aside the judgment of conviction and sentence passed.
6. On the other hand, the learned High Court Government Pleader submitted that it is not in dispute that the complainant had filed an application for sanction of loan by the Karnataka SC/ST Development Corporation, Mangalore. That in order to send the sanction order, the accused demanded an illegal gratification of Rs. 500/- and that it is evidenced from the testimony of P.W.1, Dinakar and P.W.2, Praveen Kumar that the tainted currency notes were received by the accused on 26.3.1993. He has also submitted that the nature of the work that the accused has to do is to forward the sanction order to the Bank. The application was pending with the accused. To do an official favour for sending of the sanction order, the accused has demanded money. He has further submitted that the non-examination of the Investigating Officer or the entrustment mahazar witness does not go to the root of the case when the demand and acceptance of illegal gratification is proved. He therefore submitted that the reasonings of the learned Special Judge are well founded and does not call for interference. Accordingly, prayed to dismiss the appeal.
7. In the light of the submissions, the points for consideration that arise are:
1. Whether the prosecution has established beyond reasonable doubt that the accused demanded and accepted illegal gratification to do an official favour for forwarding the sanction order towards the subsidy amount and margin money?
2. Whether the learned Special Judge is justified in recording a finding that the accused is guilty of the offence charged?
3. What orders?
8. The prosecution in order to prove that the accused demanded and accepted illegal gratification of Rs. 500/- relied on the evidence of P.W.1, Dinakar and the evidence of the trap witness P.W.2, Praveen Kumar. If under the given circumstances, the testimony of P.Ws 1 and 2 were to be accepted as credible, trustworthy and reliable, then the question of interfering with the judgment of conviction and sentence does not arise.
9. In the present case, the learned Counsel for the appellant-accused firstly contended that the sanction order is bad in law. That the trap laid is to victimise the accused. Though he has not demanded any amount and present in the office on 19.3.1993, a false mahazar was prepared by the Investigating Officer as if the accused was not in the office. The Investigating Officer and P.W.1, Dinakar and Raghavendra Rao touching the tainted notes successively, i.e., by removing from the pocket of the complainant and putting it in a sealed cover casts a serious doubt regarding smearing of the phenolphthalein powder. Though there was nothing for the accused to do any official favour, he has been falsely implicated. The non-examination of Ravikumar, the panch witness Raghavendra Rao and the Investigating Officer throws a shadow of doubt on the case of the prosecution. According to the appellant, for the reasons as above, the benefit of doubt has to be extended in favour of the accused. In the light of the above contentions, now it has to be examined as to whether there is any demand and acceptance of illegal gratification by the accused to justify the conviction.
10. It is an undisputed fact that the complainant submitted an application for sanction of loan, i.e., for grant of subsidy amount and the margin money towards the loan sanctioned by the Canara Bank. It is also an admitted fact that the accused Mariswamy was working as Accounts Assistant in the office of the Karnataka SC/ST Development Corporation at Mangalore. On going through the records seized under Ext.P. 19 and the evidence of P.W.3, P. Manohar Shenoy, it reveals the fact that the complainant had applied for loan to purchase a new Autorickshaw from the Bank. The Bank had sanctioned a loan of Rs. 33,000/- on his application. The total project cost was Rs. 46,000/ - including Rs. 10,000/- towards margin money and Rs. 3,000/- as subsidy. Since the subsidy was not received by the Bank, the loan was not released. Thus from the evidence of P.W.3, it makes clear that the Bank sanctioned the loan of Rs. 46,000/- being the total project cost. The loan amount by the Bank is Rs. 33,000/-. The margin money i.e., Rs. 10,000/- and subsidy Rs. 3,000/- is to be sanctioned by the District Manager, Karnataka SC/ST Development Corporation.
11. Now coming to the evidence of P.W.6, Chandrakanth, the District Manager, his cross-examination shows that their office used to recommend granting of loans under self-employment scheme by the Bank. Eligible applicants have to present applications to their office with photo, ration card, caste certificate, project report, affidavit and driving licence. After examining the documents that will be recommended to the Bank for sanction of loan. After the sanction of loan by the Bank, the Bank will intimate their office to pay the subsidy amount and the margin money. After such intimation, they call upon the applicant to produce the revised quotation, two stamp papers of Rs. 10/- denomination, five revenue stamps, hypothecation deed, promissory note, loan agreement and advance receipt for having received the money. Thus it evidences the fact that when once the Bank sanctions the loan, the office of the Karnataka SC/ST Development Corporation has to sanction the margin money and the subsidy amount. Then only the Bank used to sanction the loan. This is subject to the applicant producing the revised quotation, stamp papers, execution of the loan agreement, hypothecation deed and the promissory note for ensuring recovery in case of default. In the instant case, it is admitted by the complainant and it is also evidenced from the letters dated 1.1.1993 and 22.2.1993 about the fact of calling upon the complainant to produce the stamp papers, revenue stamps and the revised quotation. The complainant without complying with the requirement of the said two letters available in the file at Ext.P 19, has approached the Lokayuktha and lodged the complaint as per Ext.P 9. Even in the complaint Ext. P 9, it is not his case that he has executed the documents in favour of the Karnataka SC/ST Development Corporation on a stamp paper and that he has produced the revised quotation and complied with the directions as such. That being the fact, there was nothing left for the accused to do any official favour. That apart, the accused forwarding the order of sanction in respect of the subsidy amount and the margin money also docs not arise as the District Manager has not signed the order sanctioning the amount of Rs. 10,000/- and another sum of Rs. 3,000/-. The question of signing the sanction order by the District Manager of the Karnataka SC/ST Development Corporation arises only after the complainant executing the agreement on the stamp paper and furnishing other documents as stated by P.W.6, Chandrakanth. The prosecution has not elicited anything regarding the duties and functions to be carried out by the accused. 12. Section 7 of the Prevention of Corruption Act, 1988 reads thus:
"7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any Local Authority, Corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanations. (a) 'Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this Section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal Remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this Section."
13. If a public servant were to accept any illegal gratification as a motive or reward to do any official favour in exercise of his official functions, then he is liable to be punished if proved. In the case on hand, the question of accused forwarding the sanction order does not arise because, it is only after fulfilling of the conditions by the complainant and the District Manager signing the sanction order. When the complainant himself has not complied by producing the relevant stamp papers and other documents, the accused forwarding the sanction order does not arise and thereby, the accused doing any official favour in his official capacity also does not arise.
14. The evidence of P.W.1, Dinakar and P.W.2, Praveen Kumar shows that the Investigating Officer secured the panch witness viz. Raghavendra Rao. In their presence, the accused produced 5 currency notes of Rs. 100/- denomination. They were smeared with phenolphthalein powder and an experiment was held by preparing Sodium Carbonate solution and also preparing an entrustment mahajar. It is in the evidence of P.W.1, Dinakar and P.W.2, Praveen Kumar that it is Raghavendra Rao, who counted the notes and that it is he, who put the notes in the left side shirt pocket of P.W.1, Dinakar. It is in the evidence of P.W.2, Praveen Kumar that the Inspector instructed the complainant to hand over the money to the accused only if demanded and told them to go inside the office. When he went along with the complainant at about 2.30 or 3.00 p.m. the accused was not in his seat. They waited thinking that he might have gone for lunch. According to his evidence, that himself and the complainant enquired with one typist and the typist told them that the returning of the accused is doubtful and asked him to come on 23.3.1993. Therefore, they all returned to the Lokayuktha office. According to the evidence of P.W.2, the panch witness Raghavendra Rao took out the notes from the shirt pocket of the complainant and placed in the cover and sealed it. To that effect, a mahazar was drawn as per Ext.P 11 at the Lokayuktha office. But P.W.1 in his evidence has stated that when they enquired with the staff, they were informed that the accused has not come to the office on that day and that they went back to the Lokayuktha office. He has stated that he handed over the amount to Raghavendra Rao, who in turn put them in an envelope and gave it to the Inspector. Thereafter, a mahazar Ext. P 11 was prepared. Here itself it is relevant to mention that the complainant P.W. 1 says that it is he who removed the notes from his shirt pocket and handed over to Raghavendra Rao, whereas P.W.2 says that it is Raghavendra Rao, who took out the notes from the pocket and put it in a sealed cover. Further P.W.1 does not speak about the sealing of the cover and says that the envelope was given to the Inspector. According to the evidence of P.Ws 1 and 2, it shows that it is P.W. 1 and Raghavendra Rao, who handled the notes which were applied with phenplphthalein powder when the entrustment mahazar was prepared as per Ext. P 10. At this stage itself, it is relevant to state the material fact that the attendance register Ext.P.17 makes clear that the accused Mariswamy had attended the office on 19.3.1993. But the Investigating Officer without verifying the attendance register and also without recording the statement of any of the officials in the office of the Karnataka SC/ST Development Corporation, appears to have prepared the mahazar Ext. P. 11 stating that the accused was not in the office which cannot be believed at all and thereby, the preparing of the mahazar Ext. P. 11 itself is doubtful.
15. That in so far as the incident dated 23.3.1993 is concerned, P.W.2 has stated that as per the instructions of the Inspector, Raghavendra Rao took out the currency notes from the cover and placed in the shirt pocket of P.W. 1, Dinakar. Then himself and P.W.1, Dinakar went inside the office. On seeing Dinakar, the accused Mariswamy asked him to come a little later. They waited for some time and again went to Mariswamy. The accused Mariswamy asked Dinakar to get the quotation from Sri Rama Auto Works. The accused telephoned to Sri Rama Auto Works and told about Dinakar and asked him to come on 26.3.1993 with the quotation. To that effect, it is seen that a mahazar Ext.P 13 was prepared. From the testimony of P.W.2, it makes clear that the accused did not demand or ask the complainant any bribe whereas, the accused in order to help the complainant has telephoned to Sri Rama Auto Works to issue the quotation to the complainant. If really the accused has intended to receive any bribe, he would have definitely asked for the bribe amount.
16. In this regard, coming to the evidence of P.W.1, Dinakar he has stated that on 23.3.1993 Raghavendra Rao placed the amount in his shirt pocket and that a mahazar was prepared. Then they all went to the office of the accused. The accused was present According to him, when he reached the office at about 10.00 a.m. and asked the accused about his work, the accused told that it cannot be done and instructed him to come on 26.3.1993 and that he went back and informed the Inspector about the same. Therefore, they all went back to the Lokayuktha office and that he handed over the amount to Raghavendra Rao, who in turn gave it to the Inspector and that a mahazar was prepared as per Ext.P.13. It is evident from the testimony of P.W. 1 that when himself and the panch witnesses went to the office of the accused, he did not demand any amount and not even asked him to get a revised quotation. From the evidence of P.Ws 1 and 2 it reveals the fact that the tainted notes were handled either by the complainant or by C.W.2 or by the Inspector. Therefore, the presence of the phenolphthalein powder on the notes till 26.3.1993 itself has to be doubted. If really the accused intended to demand any amount, on 23.3.1993 itself, he would have asked the complainant to give the amount and he would not have waited till 26.3.1993.
17. In respect of the incident dated 26.3.1993 P.W.1, Dinakar has stated that on 26.3.1993 at about 8.30 a.m. he went to the Lokayuktha office. Raghavendra Rao placed the currency notes in his pocket. Thereafter, they went to the office of the accused in the jeep. The jeep was parked near the Deputy Commissioner's office. Himself and P.W.2, Praveen Kumar went to the office of the accused. The accused was not present. They were waiting at the main gate of the Deputy Commissioner's office for the arrival of the accused. They waited till 10.30 a.m. When they were waiting near the gate, at about 10.30 a.m. the accused came. He met him. Then the accused asked whether he has brought the quotation and he told that he has brought. Then he removed the quotation from his right side pant pocket and gave it to the accused. The accused received the quotation in his right hand and was holding it in the left hand. The accused asked whether he has brought the money which he has demanded earlier. He removed the money from his left side pocket and handed it over to the accused. The accused received the amount in his right hand and kept with the quotation cover which he was holding in his left hand. The accused kept it in his right side pant pocket. Then he removed a towel from his left side pant pocket and gave signal. Thereafter, the Inspector and the staff encircled the accused. Enquiring the accused, the Inspector took him to the office. In his office, the accused was made to sit in his seat. Thereafter, Sodium Carbonate solution was prepared and the right hand fingers of the accused were washed. The solution turned into pink colour. That solution was filled in a bottle M.O 4 and it was sealed. When the cover was removed, it contained 5 currency notes of Rs. 100/- denomination. It was the same notes which he handed over to the accused. In the cross-examination, he has stated that he did not complain to the Manager of the Karnataka SC/ST, Development Corporation regarding the accused demanding money. He complained to the Lokayuktha 2 months after the demand was made by the accused. The complaint given by him to the Lokayuktha was not written by him and stated that at the time when he lodged the complaint in the Lokayuktha office, he had carried Rs. 500/- and stated that on the day when he paid the amount to the accused, he gave the quotation in a cover and that he has not stated before the Enquiry Officer that he gave the quotation and the money in a cover and further stated that he had stated before the Enquiry Officer that he gave the quotation and the currency notes to the accused putting them in a cover.
18. The evidence of the complainant shows that when the accused saw him, he asked about the quotation and that it was handed over to the accused in a cover which was received by him in his right hand and later transferred to his left hand. According to his evidence, the accused asked him whether he has brought the money. Then he removed the money from his left side pocket and handed over to the accused and the accused kept it along with the quotation cover. But his own evidence shows that when the cover was got removed by the Investigating Officer, it contained 5 currency notes of Rs. 100/-denomination and it was the same which was handed over to him. Thus the evidence shows that even the notes were put inside the cover along with the quotation and was handed over to the accused. The said fact is proved from the very evidence of P.W.1 who has admitted in his cross-examination stating that he gave the quotation and the currency notes to the accused putting them in a cover.
19. In this regard, P.W.2 in his evidence has stated that he went to the Lokayuktha office on 26.3.1993, P.W.1, Dinakar and Raghavendra Rao also came there. The notes were taken from the cover and placed by Raghavendra Rao in the shirt pocket of P.W.1, Dinakar. P.W.1, Dinakar had brought quotation from Sri Rama Auto Works. That was placed in a cover and it was put in the right side pant pocket of Dinakar. Then they went to the office of the Karnataka SC/ST Development Corporation. It is himself and Dinakar who went inside the office and it was about 10.00 a.m. The accused Mariswamy had not come. They reported the matter to the Inspector. Himself and Dinakar waited near the Bunk shop whereas, the Lokayuktha staff were waiting near the compound gate. He has further stated that at about 10.30 a.m. the accused entered the office. The complainant Dinakar went and talked to the accused Mariswamy. Mariswamy asked him as to whether he has brought the quotation. Dinakar said 'yes' and handed over the quotation to Mariswamy which was received by him in his right hand and then kept in the left hand. He has further stated that the accused did not open the cover containing the quotation. He also asked Dinakar whether he has brought Rs. 500/- and demanded to hand over the amount. Dinakar took out the notes of Rs. 500/- and handed over to Mariswamy which he received in his right hand and placed those notes in the cover containing the quotation and then took the cover into the right hand and placed it in his right side pant pocket. When himself, Dinakar and the accused were going towards the office, the Lokayuktha staff came and held the accused. In the cross-examination, he has stated that on 26.3.1993, he saw the accused Mariswamy entering the main gate at about 10.00 or 10.15 a.m. He was near the Bunk shop. The Inspector was sitting in the jeep inside the compound at a distance of about 25 feet from him. He has further stated that the accused might be holding a tiffin carrier and stated that Dinakar spoke to the accused first. He told the accused that he has brought the quotation and handed over the quotation. When himself, accused and Dinakar were proceeding towards the office, the Lokayuktha Police came and held the accused. He was taken to his seat. He has further stated that the Inspector secured a glass of water, prepared Sodium Carbonate solution, then washed the right hand fingers of the accused which turned into reddish colour. It was collected in a bottle M.O.4. The Inspector questioned the accused regarding the money. The accused told that he has not received any money but only received the quotation. He has further stated that the Inspector told Raghavendra Rao to take out the cover from the right side pant pocket of the accused. The said Raghavendra Rao took out the cover and it contained the quotation and 5 currency notes of Rs. 100/- denomination. He has also stated that the cover containing the quotation was rubbed with cotton and it was washed in a separate glass containing Sodium Carbonate solution. The solution turned into reddish colour. The solution was collected in a separate bottle and sealed. He has also stated that the pant of Mariswamy was got removed and the pant pocket was washed in another glass containing Sodium Carbonate solution. That solution also turned into reddish colour. It was collected in a separate bottle and sealed. Thereafter, the trap mahazar Ext.R 15 was prepared. In the cross-examination, P.W.2 has stated that the accused told the Inspector he has not taken any money and received only the quotation from Dinakar. In the further cross- examination, he has stated that the Inspector took out the cover from the pocket of the accused.
20. On examining the testimony of P.W.2, Praveen Kumar, it shows that the quotation cover was given first. Thereafter the tainted currency notes were given which was kept inside the quotation cover, and then, the accused kept it in his pant pocket. If the evidence of P.W.2 were to be accepted as true, the pant pocket could not have been found with any phenolphthalein powder when it was washed with Sodium Carbonate solution as the evidence of P.W.1 and P.W.2 shows that the accused kept the notes in the quotation cover. Unless the quotation cover was smeared with phenolphthalein powder, there was no possibility of the pant pocket of the accused being found with phenolphthalein powder.
21. Further, on a careful scrutiny of the evidence of P.Ws 1 and 2, after preparing the entrustment mahazar Ext.P 10 on 19.3.1993, they proceeded to the office of the accused, but the complainant, panch witness and the raiding party returned to the Lokayuktha office on the ground that the accused did not come to the office on that day, though it is clear from the attendance register that the accused has very well attended the office on that day. The non-examination of any of the witnesses from the office of the Karnataka SC/ST Development Corporation shows that the raiding party have returned, it appears as the accused did not demand any bribe amount.
22. Similarly when the complainant, P.W.2, Praveen Kumar and the raiding party went to the office of the accused on 23.3.1993, the accused was found very well in his seat and was working. The evidence of P.W.s 1 and 2 reveals that the accused asked the complainant to get the revised quotation for attending to his work. But even as on that day also, though PW. 1 had the tainted money in his possession, he did not give it. This itself shows that either on 19.3.1993 or on 23.3.1993 or on any previous dates, the accused did not demand any amount from the complainant.
23. It is also in the evidence of P.W.1 that he approached the Lokayuktha as per the instructions of on'e Ravikumar, who is also not examined to establish the truth of the prosecution case. The evidence of P.Ws 1 and 2 clearly establishes the fact that it is Raghavendra Rao, who handled the notes on all the occasions by putting them into the left side shirt pocket of the complainant and again removing from the pocket of the complainant and keeping it in a sealed cover and that the sealed cover used to be opened as per the instructions of the Investigating Officer only by Raghavendra Rao. Assuming for a while that the notes were smeared with phenolphthalein powder, by handling the notes successively on all the occasions, i.e., when it was handled and removed from the sealed cover or while putting into the pocket of the complainant, naturally the presence of phenolphthalein powder on the notes would not have been found. The evidence of P.Ws.1 and 2 shows that the Investigating Officer did not seize any of the sealed covers in which the tainted notes were put. It appears that it is for the reasons best known to the Investigating Officer. P. W. 2 has consistently deposed that the cover which was kept with the quotation was rubbed with cotton and when the cotton was washed, it turned into reddish colour. This itself evidences the fact that unless the Investigating Officer used the phenolphthalein powder on the cover in which the quotation was kept, the pant pocket wash would not have been found with reddish colour.
24. The judicial pronouncements of the Apex Court in such type of cases shows, if the prosecution were to prove the demand and acceptance of the tainted notes by the accused for doing an official favour in his official capacity that itself is sufficient to hold the accused guilty and to record a conviction. But in the present case, the Investigating Officer has made a futile effort to trap the accused which is clear from the evidence of P.W.s 1 and 2. The attempt made on 19.3.1993 did not materialise. Even the attempt made on 23.3.1993 has also failed. It is therefore, the Investigating Officer appears to have plotted to hand over the quotation cover by keeping the tainted notes also. Therefore, the case of the prosecution in hatching a plan to trap the accused cannot be believed from the above given circumstances. That apart, it is clear that the entrustment mahazar Ext.P. 10 was prepared on 19.3.1993. As the trap did not materialise, the Investigating Officer returned to the Lokayuktha office and prepared the mahazar Ext.P 11 on 19.3.1993 at 4.00 p.m. Raghavendra Rao removed the notes from the shirt pocket of the complainant, kept them in a cover and sealed it. The said sealed cover is not made available before the Court. It is again on 23.3.1993, another mahazar Ext.P 12 was prepared in the office of the Lokayuktha. Raghavendra Rao taking the notes from the sealed cover kept it in the shirt pocket. The said sealed cover is also not produced before the Court. Again on 23.3.1993, the Lokayuktha Inspector prepared another mahazar at the Lokayuktha office as the trap did not materialise. Even on that occasion also, it is Raghavendra Rao, who removed the notes from the pocket of the complainant and kept in a cover and sealed. The said mahazar is at Ext.P. 13. The sealed cover was also not made available before the Court. Again on 26.3.1993, another mahazar was prepared at the Lokayuktha office which reveals that the notes which were kept in the sealed cover was opened and kept in the shirt pocket of the complainant. But even that sealed cover was also not seized or produced before the Court. From the very mahazar Ext.P. 14, it reveals that the complainant brought the quotation, the Inspector kept the said quotation in a cover and kept in the right side pant pocket of P.W.1. It is thereafter, a trap was held under the mahazar Ext.P. 15
25. It is pertinent to note that the complaint Ext.P 9 is dated 19.3.1993. The entrustment mahazar Ext.P 10 is dated 19.3.1993. Ext.P. 11 another mahazar at Lokayuktha office is dated 19.3.1993. Similarly, Ext.P 12 is a mahazar prepared at the Lokayuktha office to evidence the fact of keeping the notes in the shirt pocket of the complainant and on the same day Ext.P 13, a mahazar dated 23.3.1993 was prepared as the trap was not materialised. Though all these mahazars were prepared on 19.3.1993 and 23.3.1993, Exts.P 10 to P 13 were not sent to the jurisdictional Judge on the respective dates by keeping it in sealed covers. On a perusal of the above mahazars Exts.P. 10 to P. 15, it is seen that they were produced to Court only on 26.3.1993 as per the endorsements made on them by the concerned judicial officer. By the above facts, it shows that the very preparing of the mahazars Exts.P 11, P 12 and P 13 and P 14 becomes doubtful. That apart, to prove the fact of preparing the mahazars Exts.P 10 and P 11 dated 19.3.1993, Exts.P 12 and P 13 dated 23.3.1993 and Ext.P 14 dated 26.3.1993, the prosecution has neither examined the material witness Raghavendra Rao nor the Investigating Officer. The non-examination of the material witness viz., Raghavendra Rao, who is said to have successively handled the notes on all the occasions by keeping the notes in the pocket of the complainant and removing it by keeping them in a sealed cover, and the Investigating Officer not seizing the scaled covers is fatal to the case of the prosecution. That apart, the prosecution has not shown sufficient reasons as to the non-examination of the Investigating Officer, who is a material witness to speak to the fact of laying a trap. In the absence of clinching materials to prove the guilt of the accused, by relying only on the evidence of P.Ws 1 and 2, convicting the accused for the offence under Section 7 of the Prevention of Corruption Act, 1988 is not sustainable in law, as it lacks legal evidence. In the instant case, the prosecution has failed to establish the guilt of the accused by placing reliable, corroborative, cogent and satisfactory evidence.
26. The intention of the enactment of the Prevention of Corruption Act is to curb bribery and corruption among the public servants. It is for the prosecution to place sufficient materials and acceptable legal evidence to convict a public servant- The mere recovery of the tainted notes and the hand wash tested positive itself does not lead to an irresistable conclusion that it was received by the accused as bribe money when there was noting to do for the accused.
27. In the case of State of Andhra Pradesh v. T.Venkateswara Rao, reported in 2004 AIR SCW 907 in a situation arising out of similar circumstances the Apex Court acquitted the accused. In the present case, the non-examination of the entrustment mahazar witness as well as the Investigating Officer goes to the root of the case of the prosecution.
28. It is time and again held that the non- examination of the Investigating Officer does not take away the case of the prosecution. But in the offences arising under the Prevention of Corruption Act, the case itself starts from the Investigating Officer by preparing the entrustment mahazar and ends after the trap is completed by preparing the trap mahazar. Unless both the preparing of the entrustment mahazar and the trap mahazar are proved with cogent and corroborative evidence, the Court cannot act only on the testimony of P.W.s 1 and 2 in the present case for the reasons stated above.
29. Analysing the testimony of P.Ws. 1 and 2 being full of inconsistencies, they being not trustworthy and credible cannot be relied upon so as to come to the conclusion that the accused demanded any bribe or accepted it. The testimony of P.W.s 1 and 2 being unsatisfactory regarding the manner in which the Investigating Officer tried to lay the trap does not inspire confidence.
30. For the above reasons, the case of the prosecution being full of doubts, the benefit of doubt has to be extended in favour of the accused. The reasoning of the learned Special Judge holding that the accused is guilty of the offence charged is not sustainable and the conviction and sentence are liable to be set aside.
31. Accordingly, the appeal is allowed by setting aside the conviction and sentence passed by the learned Special Judge acquitting the accused for the offence charged.
The bail bonds of the accused shall stand cancelled.