Karnataka High Court
State By Lokayuktha Police Kolar vs M M Shettigeri on 17 October, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL APPEAL NO.74/2009
BETWEEN:
State by Lokayuktha Police,
Kolar. ...APPELLANT
(By Smt. T.M. Gayathri, Adv.)
AND:
M.M. Shettigeri,
Asst. Public Prosecutor,
JMFC Court, K.G.F.
Kolar District. ...RESPONDENT
(By Sri S. Balan for
M/s. S. Balan and Associates, Advs.)
This appeal is filed under S.378(1) & (3) Cr.P.C.,
praying to grant leave to appeal against the judgment and
order of acquittal dated 23.10.2008 passed by the learned
Prl. Sessions Judge, Kolar, in Special Case No.3/2007
acquitting the respondent/accused for the offences p/u/Ss.
7, 13(1)(d) r/w S.13(2) of Prevention of Corruption Act.
This appeal coming on for hearing this day, the Court
delivered the following:
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JUDGMENT
Questioning the judgment of acquittal, the prosecution has filed this criminal appeal.
2. Facts and circumstances giving rise to this appeal are:
(a) M.N. Suresh Kumar (PW-3) filed a complaint on 24.04.2006 before the Police Inspector, Karnataka Lokayuktha, Kolar District, stating that he had lodged a complaint in Crime No.169/2003 of Bangarpet Police Station against the driver of KSRTC bus bearing registration No.KA-07/F-392 which dashed against him when he was proceeding on his TVS moped bearing No.KA-
05/EL-1528 near Lakshmipura. Bangarpet Police after investigation filed charge-sheet in the Court of JMFC at Bangarpet, which was registered in C.C.No.428/2004. At that point of time, the accused being the Public Prosecutor of the JMFC Court, Bangarpet, during the trial of the case, demanded and received `2,700/- as bribe. The driver of the said bus was acquitted by the Court and in order to 3 give opinion as "fit case for appeal" to move the higher Court, the respondent demanded `5,000/- as bribe.
(b) The Police Inspector / PW-8, on 24.04.2006, registered a case in Crime No.05/2006 for the offences punishable under Ss.7, 13(1) (d) read with S.13(2) of the Prevention of Corruption Act, 1988 (for short, the Act). PW-8 planned a trap. A requisition was sent to the offices, wherein PWs 1 and 2 were working. On the arrival of PW- 1 and PW-2 and they agreeing to act as panch witnesses, a trap was planned. Entrustment Mahazar (Ex.P1) was drawn and PW-8 with his staff along with PWs 1 to 3 went to Bangarpet at about 2.45 p.m. and it is alleged that the respondent who was present in the office, demanded and accepted the bribe amount of `4,500/- as illegal gratification from the complainant - PW-3, for doing official favour of issuing opinion as "fit case for appeal" against the Judgment passed in C.C.No.428/2004. Trap mahazar (Ex.P2) was drawn. PW-8 conducted investigation, which was taken over by S. Mahadevaiah (PW-9), who obtained 4 the sanction order (Ex.P9) from PW-6 and filed the charge- sheet.
(c) The accused denied the charge and claimed trial. During the course of trial, PWs 1 to 9 were examined, through whom Exs.P1 to P10 were marked. After completion of the trial, learned Sessions Judge found that the prosecution has failed to prove its case beyond all reasonable doubts and as a result, passed an order of acquittal. Assailing the said judgment, this appeal has been filed.
3. The main reasons which have weighed with the learned Trial Judge to pass the impugned Judgment are that:
(a) Shadow witness (PW-1) has not supported the prosecution case;
(b) Evidence of the complainant (PW-3) is inconsistent with his statement made before PW-8;
(c) Evidence of PW-3 does not find corroboration with the evidence of PWs 1 and 2;5
(d) There is doubt regarding who put the money into the pocket of PW-3 during entrustment mahazar (Ex.P1);
(e) Timings regarding arrival of PWs 1 and 2 to the Office of Lokayuktha and the time when they left the Lokayuktha office to Bangarpet, to lay the trap differs;
(f) The evidence brought on record is not cogent, consistent and reliable;
(g) Prosecution has failed to prove its case beyond all reasonable doubts.
4. Smt. T.M. Gayathri, learned advocate for the appellant vehemently contended as follows:
(i) The acceptance of tainted money by the accused is more than sufficient for conviction of the accused for the charged offences.
(ii) The Trial Court has committed error in expecting the evidence of each of the witnesses to be microscopically detailed with specific precision in corroboration and such a thing is not possible when the evidence of the witnesses was recorded after long lapse of time.
(iii) Minor inconsistencies and contradictions in the evidence of prosecution witnesses has been given primacy.6
There is no correct appreciation of evidence of prosecution witnesses and the record of the case.
(iv) The presumption under S.20 of the Act has not been raised though the foundational aspects of the case i.e., demand and acceptance of illegal gratification has been proved by the prosecution.
(v) Proper inference has not been drawn from the proved facts and circumstances of the case and there is miscarriage of justice.
5. Per contra, Sri S. Balan, learned counsel for the respondent, contended as follows:
(i) For constituting an offence under the Act, the prosecution has to prove the demand of illegal gratification and the mere seizure of tainted money which was found in the office of the accused is not enough to foist the criminal liability.
(ii) The complainant's case should be supported by an independent eye witness and in the instant case, PW-1 cannot be termed either as an eye witness or a shadow witness.7
(iii) The evidence of prosecution witnesses is inconsistent, contradictory and untrustworthy.
(iv) The prosecution has failed to prove the foundational facts and hence the presumption under S.20 of the Act cannot be raised.
(v) Evidence brought on record by the prosecution being insufficient to bring home the guilt of the respondent and the prosecution having failed to prove its case beyond all reasonable doubts, learned Trial Judge is justified in passing the order of acquittal.
(vi) If two views are possible, then one in favour of the accused should prevail and that the Appellate Court should not interfere in such circumstances.
6. In view of the rival contentions and the record of the case, the point for consideration is, whether there is credible evidence on record to bring home the guilt of the respondent for the offences punishable under Ss.7, 13(1)(d) read with S.13(2) of the Act?
7. PW-3 is the complainant. Ex.P7 is the complaint. PW-1 is the shadow witness. PW-2 is the 8 panch witness for the entrustment mahazar (Ex.P1) and the trap mahazar (Ex.P2). PW-4 is the Assistant Engineer who has drawn the sketch of the spot (Ex.P8). PW-5 is the peon working in the office of the accused. PW-6 is the sanctioning authority, who issued the sanction order (Ex.P9). PW-7 is the chemical examiner who issued the FSL report Ex.P10. PW-8 is the police inspector who registered the case, laid the trap and conducted major part of the investigation. PW-9 obtained the sanction order and filed the charge-sheet against the accused. Ex.P3 is the document file and Ex.P6 is the explanation of the accused at the time of trap.
8. The essential ingredients of S.7 of the Act are that; (a) the person expecting the gratification should be a public servant and that he should accept the gratification for himself; and (b) the gratification should be 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. 9
9. The essential ingredients of S.13(1)(d) of the Act are that; (a) the accused should be a public servant;
(b) that he should have used corrupt or illegal means or otherwise abused his position as a public servant; (c) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
10. There is no dispute that the respondent - accused at the relevant time was a public servant. Demand of illegal gratification is sine qua non for constituting an offence under S.13(1)(d) of the Act. Mere recovery of tainted money, that too not from the accused but was found in a cover in the office is not sufficient to convict the accused, if the substantive evidence in the case is not reliable, unless there is evidence to prove the demand of bribe or to show that the money was taken voluntarily as bribe. In the absence of evidence with regard to demand of illegal gratification, the presumption under S.20 of the Act cannot be raised.
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11. The case of the prosecution is that the respondent was working as Asst. Public Prosecutor at JMFC Court, Bangarpet and had conducted C.C.No.428/2004 and according to the complainant, had demanded and received `2,700/- during the trial of the case and after the case was decided, to give opinion in the case as "fit for appeal", demanded `5,000/- from the complainant and in that connection, demanded and accepted bribe of `4,500/- as illegal gratification from the complainant for doing official favour to him, as stated above.
12. Complaint is at Ex.P7. PW-8 sent requisitions to the office wherein PWs 1 and 2 were working, seeking assistance to act as independent witnesses. G. Arun Kumar (PW-1) and K.R. Anand Chowk (PW-2) were deputed. A pre-trap mahazar / entrustment mahazar (Ex.P1) was drawn, after explaining the details of the trap and the effect of the phenolphthalein powder and its use in the trap. The trap was conducted and the panchanama is Ex.P3. After investigation charge sheet was filed. 11
13. The prosecution in order to bring home the guilt of the accused, mainly relies upon the evidence of PWs 1, 2, 3 and 5 and Exs.P1 and P2.
14. PW-1 was the shadow panch witness. It is clear from his evidence that, he was not even present inside the office of the accused when the accused allegedly demanded and accepted the bribe amount from the complainant. PW-1 was initially declared hostile and the public prosecutor sought permission to cross-examine him. In cross-examination conducted by the Prosecutor, PW-1 has not supported the prosecution case. PW-1 has in categorical terms stated that he did not accompany the complainant inside the office of the accused. Thus, PW-1 has neither heard the conversation which allegedly took place between the complainant and the accused nor has seen the alleged demand and acceptance of the bribe. Evidence of PW-1 does not help the case of the prosecution in any manner.
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15. PW-2 was the panch witness to the entrustment mahazar / Ex.P1 and the trap mahazar / Ex.P2. He has spoken regarding Exs.P1, P2 and the MOs. He has categorically admitted that the alleged bribe amount was found in a cover, in the office of the accused. Evidence of PW-2, which has certain inconsistencies and contradictions, as pointed out by the learned Trial Judge in the impugned Judgment, does not help the case of the prosecution, since he has not either heard or seen the demand and acceptance of the bribe amount by the accused. Indisputedly, the money was not found either in the shirt pockets or trouser pockets of the accused or inside the table drawer of the accused.
16. Evidence of the complainant / PW-3 has been noticed in great detail by the learned Trial Judge, in the impugned Judgment. The material inconsistencies and contradictions have been correctly noticed and pointed out. There are inconsistencies and contradictions in the deposition of PW-3. There is improvement and 13 embellishment in the evidence of PW-3. The accused, when was apprehended, did not had in his possession the bribe money. The bribe money was not actually recovered from the accused. Even according to the prosecution witnesses the bribe money was found in a cover inside the office of the accused and was recovered.
17. The criminal case of PW-3, conducted by the accused, having ended in an order of acquittal, there could be reason or motive for PW-3 to falsely implicate the accused in the case. The evidence of PW-3, which is inconsistent and not credible, cannot be accepted without corroboration. Learned Trial Judge has analysed the evidence in the correct perspective and after finding that the evidence of PW-3 has neither quality nor credibility, being unsafe to rest conviction upon such evidence, has rightly not accepted the evidence of the complainant.
18. PW-5 has said that, on 24.04.2006, he was on duty and at about 2.45 p.m., when he was outside, PW-3 came to see the accused and that the accused instructed 14 him to get coffee and a biscuit pocket, which he brought from the nearby canteen and went out of the office. He has not spoken regarding any other aspect of the case. His evidence also does not help the case of the prosecution.
19. Thus, the evidence of the two independent witnesses, PWs 1 and 2 and that of PW-5, does not advance the prosecution case of demand and acceptance of bribe by the accused.
20. The prosecution has to prove the charge beyond all reasonable doubts. The prosecution has not established by producing proper proof, the demand and acceptance of illegal gratification by the accused. In the absence of proof of demand, the question of raising the presumption under S.20 of the Act does not arise.
21. It is trite that the Appellate Court should not lightly brush aside the appreciation of evidence done by the Trial Court, unless its approach is vitiated by some basically erroneous apparent assumptions or it has 15 adopted reasoning which on the face of it is unsound, in which case only, it may become the duty of the Appellate Court, to prevent a miscarriage of justice, to interfere with the order of acquittal.
22. Having perused the record minutely, the evidence produced by the prosecution being not credible and in view of the material inconsistencies and contradictions, as pointed out by the learned Trial Judge, the evidence on record is not sufficient to hold the accused guilty of the charged offences. The Trial Court has rightly held that the accused is entitled to the benefit of doubt and passed the Judgment and Order of acquittal. The impugned Judgment is flawless and no interference in the matter is warranted.
In the result, the appeal being devoid of merit, is dismissed.
Sd/-
JUDGE sac*