Karnataka High Court
G S V Swamy vs The State By Police Inspector on 13 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.650 of 2011
Between:
G.S.V. Swamy,
Office Superintendent,
ESI Hospital, KRS Road,
Mysuru. ...Appellant
(By Sri.Venkatesh C. Sharma, Adv.)
And:
The State by Police Inspector,
Karnataka Lokayuktha,
Mysuru represented by
Special Public Prosecutor,
For Lokayuktha cases,
High Court Building,
Bengaluru. ...Respondent
(By Sri. Venkatesh S. Arbatti)
This criminal appeal is filed under Section 374 (2)
of Cr.P.C. praying to set aside the order dated
16.06.2011 passed by the III Additional S.J., and Spl.
Judge, Mysuru in Spl.C.No.38/2009, convicting the
appellant/accused for the offence P/U/S 7 and under
2
Section 13 (1) (d) R/W Section 13 (2) of Prevention of
Corruption Act, 1988 and etc.
This criminal appeal coming on for Hearing this
day, the Court delivered the following:-
JUDGMENT
This is the appeal preferred by appellant/accused No.1 being aggrieved by the judgment and order of conviction dated 16.06.2011 passed by the III Additional Sessions and Special Judge, Mysuru in special case No.38/2009, wherein, the appellant/accused has been convicted for the offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case as per the complaint - Ex.P.1 is that PW-1 - complainant one G.P.Praveen Kumar lodged the complaint before the Lokayuktha police wherein, he has stated that he is the native of Thalavatti village in Hiriyur Taluk. In January, 2007, he was serving on contract basis as a Lab 3 Technician in VCTC Division at ESI Hospital. As he was not having residential house at Mysuru and he was serving on contract basis getting a meager salary and the rent of the rental house was also very high he approached accused No.2 - Dr. Gopalakrishna, Medical Superintendent of the ESI Hospital, for allotment of quarters. Then accused No.2 told that quarters cannot be allotted to him directly as they are meant for Group - D employees and also told that they will allot the quarters to Sri. Boraiah and also told that he can stay in the quarters of said Boraiah and the medical superintendent also told that it cannot be done so easily for that he has to pay Rs.3,000/-. Complainant asked him when he has to pay that amount, then accused No.2 told to meet Sri. Swamy, Accounts Secretary and according to his instructions, he has to pay the amount. Accordingly, on 17.08.2007, morning he met Sri.Swamy the present appellant herein in the ESI Hospital and when he enquired about the quarters, he informed what 4 accused No.2 has told to accused No.1. Then accused No.1 also told that yes, accused No.2 also informed him also and he has already told Boraiah to submit an application and on that day he may bring his application and informed the complainant that he has to keep the amount of Rs.3,000/- ready on 21.08.2007 and it has to be paid to him. Then he asked accused No.1 wherein, he need not pay the amount to accused No.2 then accused No.1 told that he has to give the amount to him and thereafter, they shall share it. As the complainant was not interested to pay the money and to get the work done and as the quarters was not allotted to him directly and asked him to stay in the quarters of some other person and asked him to bring the amount. Therefore, he lodged the complaint to take appropriate legal action against accused Nos.1 and 2. Alongwith the complaint he has also produced Rs.3,000/-. On the basis of the said complaint, case came to be registered in Crime No.13/2007 for the 5 offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988.
3. After completing the investigation, Investigating Officer filed charge sheet against the accused persons for the said offences.
4. Then the Special Judge prepared the charges against accused Nos.1 and 2 for the said offences and the charge sheet was read over and explained to the accused Nos.1 and 2. They pleaded not guilty and prays for trial. Accordingly, matter was set down for trial. In support of the case, prosecution in all examined 8 witnesses and also produced 28 documents with sub markings and 7 Material Objections. Then accused persons were examined under Section 313 of Cr.P.C. and the incriminating material was read over to the accused persons by way of framing the questionaries and answers given were recorded in the 6 statement. On the side of the defence, no witnesses were examined nor any documents were marked.
5. After hearing the arguments on both the sides and also considering both oral and documentary evidence, ultimately learned Special Judge acquitted accused No.2, the Medical Superintendent and convicted the appellant/accused No.1 for the said offences.
6. Being aggrieved by the said judgment and order of conviction and also the sentence imposed, the appellant/accused No.1 challenging the legality and correctness of the said order of conviction and sentence. On the grounds urged by the appellant/accused No.1 at ground Nos.4 to 29 of the appeal memorandum, appellant/accused No.1 is before this Court in this appeal.
7
7. Heard the arguments of the learned counsel appearing for appellant/accused No.1 and also arguments of Sri.Venkatesh S. Arbatti for respondent - State.
8. Learned counsel for the appellant made the submission that so far as the demand of the bribe amount and the acceptance of the said amount, there is no acceptable material placed by the prosecution. He also submitted that if the prosecution material is perused, there is no consistency in the evidence of the prosecution witnesses. He also made the submission that looking to the complaint averments that he approached the accused persons even earlier to 17.08.2007 but about the same there is no reference in the charge sheet. In the charge sheet, it is mentioned that the demand is on 21.08.2007. This itself clearly goes to show the allegation of demand and the case made out by the prosecution is not acceptable. 8
9. Learned counsel made the submission that even with regard to the place of the receipt of the bribe amount by the appellant/accused No.1. herein, it is not consistent. Looking to the prosecution material three places, first place at the Portico, second place at the steps and third one at the entrance gate are mentioned by the prosecution witnesses. Regarding the place of the receipt of the alleged bribe amount, he also made submission that though it is a prosecution case that when the Lokayuktha Inspector alongwith the staff entered to the chamber of accused No.1 and caught hold the hands and asked whether he has received the amount, he took out the amount from the shirt pocket and produced before the Investigating Officer. Learned counsel also submitted that shirt though seized and sent to chemical examination, but looking to the Ex.P.28 - FSL report, it will not make out the case that it was washed in the Sodium Carbonate solution. Learned counsel further made the submission that 9 complainant was not at all entitled for the quarters. He was working on contract basis and the quarters are meant for Group-D employees and complainant was working on temporary basis. Therefore, learned counsel submitted that when he was not entitled for allotment of quarters, the question of officials making the promise that they will make arrangements for the quarters for his stay and demanding bribe amount does not arise at all. He also made submission that even regarding taking hand wash of the accused person with Sodium Carbonate solution, there is no consistent material placed by the prosecution.
10. Learned counsel made the submission that even according to the prosecution case, the complainant approached accused No.2 at the first instance, accused No.2 informed complainant to give the amount into the hands of accused No.1. Therefore, the learned counsel submitted that if these materials are appreciated, there 10 is no demand as such made by accused No.1. Therefore, he made the submission that the first requirement of the payment for the bribe amount itself is absent so far as accused No.1 is concerned. Hence, he submitted that the alleged offence cannot be said to be committed by the accused No.1. Hence, he submitted that these aspects were not at all properly considered and appreciated by the learned Special Judge and wrongly came to the conclusion and convicted the appellant/accused No.1. It is also his submission that the materials also goes to show that the voice recorder was given to PW-1 - complainant and he was asked to keep it on and to record the conversation going to take place in between the complainant and the accused No.1. Though the said tape recorder was produced before the Investigating Officer by the complainant but the same was not produced before the Court alongwith the charge sheet and even the Court is not knowing what was recorded 11 and whether any conversation was recorded or not, if recorded, what were the conversations.
11. Learned counsel submitted that non production of the tape recorder before the Court is against the case of the prosecution. On this ground, he submitted to allow the appeal and set aside the judgment and order of convicting the appellant/accused No.1 for the said offences.
12. Per contra the learned Special PP made the submission that looking to the averments in the complaint, Entrustment Mahazar at Ex.P.2 and the Trap Mahazar at Ex.P.3, clearly goes to show demanding and acceptance of the bribe amount. There is specific averments made by the complainant at all three documents. He also made the submission that documents supported by oral evidence and PW-1 and 3 complainant and shadow witness, who examined the complainant during the Trap mahazar. Hence, if all 12 these materials are taken out and collected by Investigating Officer PW-8, consistently they will make out the case of demanding and acceptance of bribe amount. He also made the submission that after the accused No.1 was apprehended for his offences, firstly, his hand wash was taken in the Sodium Carbonate solution and it turns into pink colour and however he contends that he has not received the bribe amount, if he has not received the amount, but the hand wash turning into pink colour does not arise at all. He also made the submission that if the bribe amount is thrusted forcibly, the question of the hand wash turning into pink colour does not arise at all. He also made the submission that even the shirt was seized and it was sent to chemical examination. So this material also clearly goes to show and corroborates the contention of the complainant regarding the demand and acceptance of the bribe amount.
13
13. Learned Special PP - Sri.Venkatesh S. Arbatti for respondent further made the submission that when the accused himself has contended that bribe amount was thrusted into his pocket but further he accepts that the amount has been seized from his possession. Then it is for him to explain as to why he received the money from the complainant and to rebut the presumption under Section 20 of the Prevention of Corruption Act. He also made the submission that there may be some discrepancy in the evidence of prosecution witnesses but only on the basis of minor discrepancy, the entire case of the prosecution cannot be thrown out and rejected. Hence, he submitted that all these materials are properly considered and appreciated by the learned Special Judge and rightly comes to the conclusion in convicting the accused. He also made the submission that regarding the sanction order which is in receipt of accused No.1 is concerned, the oral evidence of the sanction authority, who is examined as PW-6 before the 14 Court, clearly goes to show that there is mental application to the materials sent and after examining the entire materials, PW-6 has signed the Sanction Order. Therefore, the Sanction Order is in compliance of Section 19 of the Prevention of Corruption Act, 1988. Hence, learned Special PP - Sri.Venkatesh S. Arbatti for respondent made the submission that looking to the judgment and order of conviction passed by the Court below, all these aspects are properly appreciated and same is to be dismissed by confirming the judgment and order of conviction passed by the Court below.
14. Learned Special PP - Sri.Venkatesh S. Arbatti for respondent relied upon the decisions as mentioned in the list of judgments with brief notes produced dated 20.04.2018. He has mentioned nine judgments in the said list.
15. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction 15 passed by the Court below, perused the oral and documentary evidence produced by the prosecution, perused the decisions relied upon by the learned Special PP - Sri.Venkatesh S. Arbatti for respondent, in support of his contention and I have also considered oral submissions made by both the counsel at the Bar.
16. Let me examine the prosecution material to ascertain whether there is real demand and acceptance of bribe amount as alleged by the complainant. Perusing the complaint at Ex.P.1 dated 21.08.2007, looking to the contents of the complaint, wherein, it is stated by the complainant that earlier to 17.08.2007, he met the accused No.2 - Medical Superintendent and requested him to allot the quarters and he was told that directly it cannot be done as he is a temporary employee working on temporary basis. But, however they will allot it to PW-7 - Boraiah and he can stay with him in the said quarters and at that time accused No.2 told him it is not 16 so easy but he has to pay an amount of Rs.3,000/-. So, there is demand. As alleged in the complaint is concerned, no specific date is mentioned in the complaint regarding the said demand but reading the complaint it can be understood by the Court itself it is earlier to 17.08.2007 and when complainant asked when he has to pay that amount, then the date was mentioned by the accused No.2 to meet accused No.1 and on 17.08.2007, he met accused No.1 and conveyed what was told by accused No.1 and at that time, accused No.1 also told that yes, he was informed by accused No.2. Therefore, he has to keep the amount ready and he has to pay it on 21.08.2007. Looking to the complaint averments, alleged demand is said to be prior to 17.08.2007 but there is no specific mention in the complaint about the exact date, time and place where it was made.
17
17. Learned counsel appearing for the appellant/accused No.1 during the course of the argument made the submission that charge sheet mentions the date of demand as 21.08.2007 and it has not referred any other earlier dates on which date it is alleged that there was a demand for bribe amount.
18. Perused the contents of Ex.P.2 Entrustment Mahazar and the contents of the Trap mahazar at Ex.P.3. In the Entrustment Mahazar, it is mentioned that witnesses Smt.G.A. Mary and Sri.M. Mallesh were sent to the Lokayuktha office on 21.08.2007 and they were told that complainant has lodged the complaint and the copy of the complaint was given to them to go through the same. Therefore, the contents of Ex.P.2 - Entrustment Mahazar also goes to show that so far as the demand of the bribe amount is concerned, there is no specific mention about the exact date and time the demand was made. Coming to the contents of Ex.P.3, 18 the Trap Mahazar, the trap was conducted on 21.08.2007 at about 2:45 p.m. which contains the whole process that had happened in the Lokayuktha office. The complainant went to the office of accused No.1. and after getting signal from complainant - PW-1 they ran to chamber of accused No.1 and took hand wash of accused No.1 in the Sodium Carbonate solution and seized the amount and also seized the shirt worn by the accused No.1. Therefore, even considering the contents of the Ex.P.2 and 3, Entrustment Mahazar and Trap mahazar, there is no specific date as such that earlier to 17.08.2007 of which day the complainant met accused No.2 wherein the demand was made for the payment of the bribe amount. Coming to the oral evidence of PW-1 - complainant, there also he has not made it clear about the exact date of the bribe amount and the place at which it was demanded by the accused No.2, who alleged to have informed accused No.1 about the said demand and requesting accused No.1 to receive 19 the said bribe amount. Even looking to the evidence of PW-3 - shadow witness, he has not mentioned the specific date, time and place about the demand for the bribe amount. Considering these materials, I am of the clear opinion that regarding the date and place of demand of the bribe amount of Rs.3,000/- is concerned, there is no specific mention. Therefore, this court has to take into consideration that the alleged demand was made earlier to 17.08.2007.
19. Now coming to the materials with regard to the said demand and acceptance, it is stated that Police officer gave PW-2 and 3, a sum of Rs.3,000/- with direction to note down the serial numbers and denomination of the currency notes and afterwards Police Officer took the amount and Phenolphthalein powder was smeared on the currency notes and again it was given to P.W.2 to verify the amount and keep the amount in the shirt pocket of P.W.1 and accordingly, 20 the amount was kept in the shirt pocket of P.W.1, the Police Officer instructed the complainant to hand over the said amount if accused demand money. P.W.2 and 3 have stated that afterwards, fingers of the hands of P.W.2 was dipped in Sodium Carbonate solution and the colour of the solution turned into pink colour, later Police officer prepared Mahazar as per Ex.P.2 and seized remaining Phenolphthalein powder and solution. P.W.2 and 3 along with the complainant, Police Officer and staff went near E.S.I.Hospital, Mysuru. P.W.3 - Sri. M. Mallesh was asked to observe what is happening in between the complainant and accused No.1. The materials also goes to show that for this purpose, complainant was given the voice recorder and it was played at the time of Entrustment Mahazar proceedings. The evidence of PW-1 and 3 also goes to show that when they went to the office of accused No.1, tape recorder was kept on but the materials goes to show, ultimately after conclusion of the Trap mahazar proceedings 21 though PW-1 complainant handed over the voice recorder back to the Investigating Officer but Investigating Officer taking decision that the conversation was not properly recorded and was not properly audible, so it was not produced before the Court below. It was admitted fact that with regard to the place of the demand of the bribe amount is concerned, the evidence of PW-1 and 3 - the shadow witnesses clearly goes to show that firstly they went to the office of the accused No.1, where he was not present in his office then, they went to the office of accused No.2 and told accused No.2 that accused No.1 is not in his chamber, so accused No.2 told them that he might have gone outside and to wait for some time. This evidence clearly goes to show that three places regarding the demand of bribe amount of Rs.3,000/- was given into the hands of accused No.1. PW-2 and 3 have stated that demand of bribe amount was taken place at three places i.e., 1st place was at Portico and 2nd place was at 22 steps and 3rd place was at entrance gate of the said premises. Therefore, if these materials are appreciated it is very difficult for the Court to accept the contention of the prosecution at which exact place the amount of Rs.3,000/- has been paid into the hands of accused No.1. Perusing the contents of Trap mahazar - Ex.P.3 itself mentioned that when the complainant gave the amount, accused No.1 received it through his hand and kept it into his shirt pocket. There is no specific mention whether it is right hand or the left hand the accused No.1 took the bribe amount. PW-3 in his evidence at page No.3 has deposed that when accused No.1 asked the bribe amount, the complainant took out the amount from his shirt pocket and gave it into the hands of the accused No.1. The accused No.1 received the said amount from complainant and kept it in the shirt pocket. So, this evidence of both complainant as well as PW-3 goes to show that simply the accused No.1 has received the amount from complainant, which hand 23 whether left or right is not specified in their evidence. But, taking hand wash of accused No.1 does not inspires the case. The specific case of the prosecution is that accused No.1 has received the bribe amount in the right hand only so that right hand wash has to be taken.
20. Now coming to the evidence of PW-3, the shadow witness he deposed at page No.3 that when the complainant gave signal to police about handing over the money to accused No.1, then, the police caught hold the hands of accused and they have shown their identity and Sodium Carbonate solution was prepared in a plastic lota (tumbler) and the right hand wash was taken in the same and it turns into pink colour. He further deposed that the left hand wash of the accused was taken in another lota (tumbler) in the solution which also turns into pink colour. This itself clearly goes to falsify the case of the prosecution and as it is 24 against the contention of PW-3 that amount was received into right hand and directly it was kept into the shirt pocket. No doubt it is the case of the prosecution that accused No.1 took out the amount from shirt pocket and produced before the Investigating Officer and by providing alternative shirt, shirt of accused No.1 was also seized and it was sent to FSL examination.
21. In this connection, I have perused the FSL report at Ex.P.28. If the inner portion of the shirt pocket was really washed into the Sodium Carbonate solution then the result in Ex.P.28 so far as the column test for Phenolphthalein and test for Sodium Carbonate, the result of article No.5 was Positive with regard to the presence of Phenolphthalein and Negative with regard to the presence of Sodium Carbonate. Article No.5 is one sealed cover containing AGO-1 wearing shirt, where the bribe amount of Rs.3,000/- was found sealed with letter 'K'. With regard to Article No.5 is concerned, it is 25 mentioned in the physical appearance that "cover with shirt". So far as the result of the test is concerned, test for Phenolphthalein is positive and test for Sodium Carbonate is negative. This itself clearly indicates that the inner portion of the shirt pocket was not washed in the Sodium Carbonate solution. As per the contention of the prosecution, if the currency notes were kept inside the pocket of the shirt, then definitely the result of test for Sodium Carbonate would be positive. Looking to these materials, the contentions of the prosecution regarding the FSL report is inconsistent.
22. The allegation made by the prosecution that in order to allot the quarters to the complainant, there is demand for bribe amount of Rs.3,000/-. Firstly, demand was made by accused No.2 - Medical superintendent, he further told the complainant to go and meet accused No.1 - Office Superintendent and pay him an amount of Rs.3,000/-. But even as per the 26 prosecution, it is an admitted fact that the complainant is not a permanent employee and he is a temporary employee working on contract basis. (A-4/3) Quarters are meant for Group - D employees who are permanent employees of the company. And so far as the complainant is concerned, he has not filed any application seeking allotment of the quarters. In the deposition of PW-1 at page No.5, the complainant has deposed that he was knowing that the quarters were meant for the Group - D employees of the hospital and they were not given to persons working on contract basis and he further deposed that he has not given any application seeking allotment of the quarters. Therefore, when complainant was knowing the fact that he is not entitled for the quarters and they were meant for Group - D employees of the said department only and they were not allotted to the persons working on contract basis and as he has not given any application seeking allotment, the question of accused demanding 27 the bribe amount stating that they will allot quarters does not arise. Further the contention of complainant is that accused No.2 told that they will allot the quarters for PW-7 - Boraiah and complainant can stay with him in the said quarters. It is very difficult to accept the case of the prosecution.
23. Apart from that, it has come on record through the evidence of PW-4, in cross-examination at page No.3, at para No.4 that there is no procedure of allotting the quarters of ESI hospital to the temporary employees. The quarters No.A-4/3 which is located in front of the hospital were meant for group - D employees. This evidence also made clear that the complainant was not eligible for allotment of the said quarters. In the cross-examination of PW-4, at page No.2 in para No.3 he has stated that somebody told that complainant - Pradeep Kumar who was working in the said hospital on contract basis was staying in the 28 quarters of the hospital. But he does not know it particularly but he admitted that he informed accused No.2 that the complainant was staying in the said quarters unauthorizedly. He further deposed that after he informed accused No.2 about the same, accused No.2 called the complainant and immediately warned him to vacate the quarters otherwise, he will give compliant before the police. For this reason, the complainant was having enemity towards accused No.2 is not known to PW-4.
24. This also goes to show that there was a warning given by accused No.2 to complainant to vacate the quarters immediately otherwise, complaint will be filed. Due to this reason, the complainant had enemity on accused No.2 and there is no question of demanding and receiving bribe amount of Rs.3,000/-
25. Even with regard to the demand of the bribe amount is concerned, though PW-3 the shadow witness 29 was asked to observe what is happening between the complainant and accused. In the cross-examination of PW-3, at page No.8 he has deposed that it was 2.05 or 2.10 p.m. when they came and stood near portico. Complainant showed them that accused No.1 is coming towards the gate. When accused No.1 was entering the compound, the complainant went towards him and they conversated something. But PW-3 was standing at the Portico. When both accused No.1 and complainant came conversating towards Portico, at that time, he heard what they were talking. It was about 2-3 minutes they conversated before coming to Portico. Accused No.1 and the complainant conversated each other and when they came near by him, complainant told accused No.1 that he had been to Medical Superintendent and he told to give the amount into the hands of accused No.1 and accordingly, he has brought the amount and accused No.1 received the amount from the complainant at the Portico.
30
26. Even this portion of the evidence of PW-3 is appreciated and closely scrutinized, again there is no demand for bribe amount from accused No.1.
27. It is also the case of the prosecution that the voice recorder was given to the complainant by the Investigating Officer with a specific instruction to keep the recorder on and record the conversation going to take place between the complainant and accused No.2.
28. It is also evidence on record that PW-1 - complainant while going to the office of the accused No.2, he kept the voice recorder on and he has also deposed that after the Trap mahazar proceedings, he handed over the tape recorder to the Investigating Officer. This fact is not in dispute but Investigating Officer taking the decision that it was not properly recorded and audible and due to this reason, the Investigating Officer has produced the voice recorder before the Court along with the charge sheet. 31
29. Sri.Venkatesh S. Arbatti - learned Special PP for respondent made the submission that during the course of arguments, because the conversation was not properly recorded and audible and as it was not helpful to the prosecution case, he did not produced the voice recorder before the Court. Even if the conversation was not properly recorded and audible, the said voice recorder ought to have been produced before the Court by the Investigating Officer and it is for the Court to play it in the open court and to take decision whether the conversation is there or not, if it is there, whether it audible or not. The Court only on the say made by the Investigating Officer and allowing him to take decision in the matter for non production of the Tape recorder is not proper.
30. Perusing the oral evidence of the complainant, PW-3 - shadow witness and other materials, the contention of Sri.Venkatesh S. Arbatti for respondent 32 for non production of the voice recorder before the Court cannot be accepted at all.
31. Even looking to the evidence with regard to whether the voice recorder is audible or not, there is no acceptable evidence and it is inconsistent evidence.
32. In this case, I can refer to the deposition of PW-1 wherein he has deposed that when police sent himself and the panch witness to accused persons, they gave one tape recorder to him informing him to record the conversation going on between him and accused persons. He further deposed that the voice recorder was verified in the lokayuktha office. He kept the tape recorder on and recorded the conversation between him and the accused person. He has not examined whether same was recorded in the tape recorder or not. He does not know the fact that the police after receiving the tape recorder from him, they examined the tape recorder regarding the conversation was recorded or not. So this 33 evidence of PW-1 clearly goes to show that it was not played in his presence.
33. PW-3 who deposed in his evidence the conversation recorded in the tape recorder was not audible. He further deposed that the complainant before going to the office of the accused person, he kept recorder on and the complainant played it after coming out of the said office and it was not properly recorded. So, this evidence of PW-3 goes to show that it is contrary to what has been deposed by PW-1. Because of this reason, ultimately it is for the Court to examine the tape recorder in the Court itself and to take a decision whether it is helpful to the case of the prosecution or not. Therefore, non production of the tape recorder before the Court is against the prosecution case and adverse inference has to be drawn against the case of the prosecution for not producing the recorder before the Court.
34
34. With reference to the recovery of the bribe amount of Rs.3,000/- is concerned, no doubt, materials goes to show that bribe amount was recovered from accused No.1 and he has produced the same by taking it out from his shirt pocket. I have already referred to the evidence of the prosecution and FSL report and as I have already observed above, there is no satisfactory material to show that the shirt pocket was washed into Sodium Carbonate solution. Even this observation is also supported by the document marked at Ex.P.28. Even if it is accepted that there is recovery of amount from of accused No.1, but the recovery of amount is not sufficient unless it is established that demand and acceptance of the bribe amount was there. For this, the accused took out the bribe amount from his shirt pocket and the demand and acceptance itself is not satisfactorily proved by the prosecution. Even that itself not sufficient to come to the conclusion that 35 prosecution proved charges beyond all reasonable doubt.
35. I have also perused the judgment and order passed by the Court below. All these aspects in the prosecution witness were not properly considered by the learned Special Judge. He wrongly perused the case and convicted the accused No.1. Therefore, the judgment and order of conviction in respect of accused No.1 is concerned, it is not in accordance with the material on record both oral and documentary and it suffers from serious legal infirmities. Therefore, it is not sustainable in law. Appellant has made out case to interfere into the judgment and order of the Court below.
36. Accordingly, the appeal is allowed. The judgment and order of conviction dated 16.06.2011 passed by the III Additional Sessions and Special Judge at Mysuru in Special Case No.38/2009 as against the 36 appellant-accused No.1 for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 is hereby set aside. The appellant-accused No.1 in the above appeal is acquitted from the charges leveled against him.
The bail bonds of the appellant/accused No.1 stands cancelled.
The fine amount deposited if any is refunded to the appellant/accused No.1.
Registry is hereby directed to send the operative portion of this judgment to the concerned prison authorities immediately.
Sd/-
JUDGE MH/-