Karnataka High Court
State By Lokayuktha Police vs A G Rajappa S/O Eswarappa on 27 February, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated the 27' day of February 2012 -BEFORE: ens, HON'BLE MR.JUSTICE : V.JAGANNA' HAN, CRIMINAL APPEAL No. 131 / 2009 BETWEEN : State by Lokayuktha Police;. Davanagere. . Ap pellant ( By Sri S.G.Rajendra vRe day. Advocate. ) a a oes Nt A.G.Rajappa... ° . S/o Eswai 'appa, Aged a bo ; Village Accountant. Molesicigere village. I Harihara Taiuik, Davanagere District. . Respondent ( By Sri Sree Harsha, Advocate, for Sri P.A.Virupakashaiah. ) : -- Criminal al'Appeal filed under Section 378(1) & (3) of the' C Cr.P.C, "prayin ng to grant leave to file an appeal agai past thie judgment and order of acquittal dated 5.3.2008 passed by the District and S.J., Davanagere, _ in. Spl .C.Lok.No.5/2006, acquitting the respondent/ ? accused for the offences p/u/s 7, 13(1)(d) read with e ood 3(2) of the Prevention of Corruption Act This appeal coming on for hearing this day, the irt delivered the following : JUDGMENT
The acquittal of the respondent... is: called iti.
question in this appeal by the siatet rough Lokayuktha police
2. The respondent-accuséd was put 'on trial in respect of the offences: pu this shable 'ander sections 7, 1S()(d) read. with 15{2) of'the Prevention of Corruption Act, 1988 oi "the prosecution ~foundation that on 2.1.2006, "the ace used, while workin ng as the Village Accountant "of "Holesirig igere Village, Harihara Taluk, Da avanageré ; District." demanded Rs.600/- from a CoH plana Shivamurthy as motive to show official ". favour ti a) hi rh, 1 for issuing bonafide certificate to purchase a tractor 1 the urpose of agriculture.
3... The complainant, unwilling to pay the bribe amount, approached the Lokayuktha police and gave his complaint as per Ex.P-30. A case was registered in , ae
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¥ F.LR. as per Ex.P-31 and entrustment mahazar was ynducted as per Ex.P-3 and _ the complamant, accompanied by the shadow witness P.W.1, wer at to ). the house of the accused and paid the amount.on demand :
by the accused. The trap w as successful, and trap mahazar was drawn as per Ex.P-2. >». On comptetion of. the investigation and after obtaining the sancti ion order as per Ex.P-29, charge'sheet was-filed.
4. At the trial, fol ic owing | the. accused pleading not guilty, the prosecution. examined eight witnesses and marked -thirty-five. documents "with six M.Os. The sean accused ied' n0 de ofene NE. evi idence. the course of his explanation uring 'the trap mahazar, the accused acvépted having received Rs.600/-, though for other os ; reasons, 6 Of « col iecting the land revenue. The trial court aequitted tne accused solely on the ground of the ». demand:by the accused having not been proved by the petitioner.
"5, I have heard learned counsel Shri S.G.Rajendra Reddy for the appellant-Lokayuktha and learned La counsel Shri Sree Harsha for the respondent-accused and perused the records of this case.
6. The submission of the learned counsel" for, the'. appellant is that, the accused had accépted-the bribe ~ demand by the accused, the amount. was paid to.bim by P.W.7. did not vination-in<chief,"
o cD a SS = no ' examination... has. admitted that) the accused had accepted. the, brige. amount froani him. P.W.1 shadow a e rey 7 Ja pont witne 1as supported.thie prosecution in full and so also the panch witne .. givers bythe accused during trap mahazar Ex.P-2 y the accused. But, < Soe ro ar, = ud owt i wast ei
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'the payment was made to the accused in the house of the accused. Therefore, the conviction of the respondent ought to have been the view taken by the trial court but, instead, the trial court acquitted the accused on a perverse reading of the evidence on record.
7. On the other hand, the submission of. the learned counsel for the respondent-ac cused is that the accused ~ did issue a receipt for the land 'revétiue as per Ex.P-?1 and the complainant hiniseif. JA nas turned. hostile "and,. therefore, the trial court was justified int acc} oting the argument © f the acc vused and acquit ta al.order needs no nterference the point for vonetdenation. is whether the appellant has made out a case. for-this court to interfere with the judgment of acquittal.
A 9. . a Normally the appellate court would be slow in dis ist turbin ping: the order of acquittal passed by the trial court. : At the same time, if the finding recorded is ~ perverse in nature and the view taken is unreasonable | one, the appellate court will be compelled to interfere in such circumstances. In this regard, the Apex Court's observations in the case of Anil Kumar Vs. State of U.P., reported in 2005 S.C.C. (Cri) 178, require to be taken note of and they are as under:
court reviewing the evidence upon 'whieh nae - order of acquittal is based'. . Generally, the 7 order of acquittal shall niot be interfered 'with because the presi umption, of innocerice of the accused is further' strengt the ene d by acquittal. The golden thread' which r runs Ss Ss through the web of. acimin ristration of Justice in criminal cases is: that' if two views: are possible on the evidence adduced iy the case, one pointing 'to the guilt 'of ie gorgeed and the other to his | innocent ce . the-. view which is favourable to the accused sh ould be adopted. The paramount corsi ideration of the court is to ensure that miscarriage of justice is
- prevented. A miscarriage of justice which may arise from acquittal of the guilty is no : less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh Vs. State of M.P. - (2002)4 SCC 85 : 2002 SCC (Cri) 736 (2002)2 Supreme 567). The principle tobe.
followed by the appellate court consid ring | the appeal against the judgment oF f acqii ittal - is to interfere only when there 'ar e compe ell ng"
and substantial reasons for doing se. LE the :
impugned judgment i is "clearly unreasonable and relevant and, cons ieinig, materials have been unjustifi ably elimins al ed in. the process, Se it is a compelling-re reason for inte orfet ence."
10. Now-co vi fiderice ord, though the complainant:. whio: is». -- ed as P.W.7, has turned hostile: in the . sxeamedtidn-in- chief. in the cross- examination, he adiniis' that the accused accepted the _ aniount, given by hint. P.W.1 is the shadow witness and * : he » deposed that, on going to the house of the accused, the 2 ac sensed 'eas not found in the house. But, again the os complainant and the shadow witness went to the house ss of the accused and found him there and the accused asked the complainant whether he had brought the amount and pursuant thereto, the complainant gave Rs.600/- and thereafter the accused was caught by the Lokayuktha police.
11. The shadow witness has clearly stated that, the:
accused told the complainant that. the™..bonafide ~ certificate is in the office and. woud "De giver, the BR following day and then, the aecused asked, wh ether the. oS money has been brought and.ok the amount of Rs.600 /- being given, t he accused took' it and kept it at the right side corner of 'his table: , The. witines's has confirmed that the hatid. wash of the. accused turned t the chemical solutici- into pink.colour 4 nd- speaks to the panchanama Ex.P-3:.as well.
12.° Fhe explanation given by the accused during the "trap mahazar Ex.P-2 has also confirmed the receipt of ; the -atnount, by the accused from the complainant.
3Nov vhe re in the explanation has the accused come up oe with the defence theory that he received the money towa urds the land revenue payable by the complainant.
learned counsel for the is concerned, the said document only speaks of Rs.100/- being collected. Though several documents were referred to by_ the learned counsel for the respondent viz.. Exs,P-19, P-20 and P-21, the trial court has observed that the said numbers also give rise to take the view that they were.
issued on different dates.
13. The learned trial:
St ie judge has further observed in the course of his judgment < a t paras graph: 13 itself that the receipt of 4 the cama an aint bythe ¢ ac cus ed had been proved by virtue-of 'the & ' widence of P Paws. 1, 2 and 9 and also by virtue of sodium carbonate solution turning into pink colour wien the: han ds of the accused were washed in ~. the said solution... However, the trial court erred i eo f.
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oe co here was no evidence of demand made z by the scuncka merely because the complainant had not on supported d the prosecution case in part. What the trial court 1 ost sight of was the evidence of P.W.1 shadow | witness, who has spoken to the fact of demand made by the accused and receipt of the amount by the accused and the explanation given by the accused also confirming the acceptance of the bribe amount by the accused.
14. Acceptance itself is an indication of the amount"
being received by the accused whichis alse confremed by the accused in his expianation during. the -trap. mahazar, whereas rec overy, of. the amount from the possession of the accused' need iiot. necessarily imply that the accused had-accepted.the amount. No doubt, ry c mere recovery. Of. the amount its elf is not sufficient to hold the aeeusedh suit) But, At the instant case, there is not only r recovery of 'the amount from the accused, but the ac ccused hi hi mse elf has accepted the amount given to a hina ind the evidence of P.W.1 confirms that the amount
- ; was accepted, by the accused after asking the cemplainan t iwhethe er he has brought the amount or not. Therefore. the trial court has committed serious error in SS observing that the demand is not proved by the : _ prosecution. For the aforesaid reasons, the findings recorded by the trial court are liable to be set aside. gs ui bog % fe 2
15. Heard on the question of sentence. The learned counsel for the respondent submitted that mininium sentence be awarded. On the other hand..the learned.
counsel for the appellant-Lokayuktha "submitted that ~ maximum sentence permissible be ewardeéd. -
16. Having thus heard both sides, the feHowing order is passed:
& The appeal is allowed and™the acquittal of the respondent iby :the. trial "court "is-.set aside and the respondent. is -convicted. in respect of the offences im, respect of the conviction under Section 7 of the 'P.C:Act, the respondent-accused is sentenced to Rs.5,000/~and in default to undergo S.I. for one month. In respect of the conviction under Sections 13(1)(d) cead with 13(2) of the P.C.Act, the respondent-accused "is sentenced to undergo S.l. for one year and to pay Rs.5,000/- fine and in default of payment of fine, to undergo further one month S.I. The substantive sentences to run concurrenily and the respondent is entitled to set off for. the period already undergone in custody, if any. The trial court to .take .necessary. steps "for. compliance of the aforesaid fat on Swe.
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