Karnataka High Court
Smt Sangeeta W/O Sudarshan vs The State Of Karnataka on 26 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.200052/2014
BETWEEN:
SMT SANGEETA W/O SUDARSHAN
AGE:37 YEARS, OCC: EX-ANGANWADI ASSISTANT
R/O BAGDAL
TQ. & DIST. BIDAR
... APPELLANT
(BY SRI SHIVAKUMAR MALIPATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
LOKAYUKTA POLICE
REPRESENTED BY
SPL.PUBLIC PROSECUTOR
LOKAYUKTA
HIGH COURT
GULBARGA BENCH
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL.PP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE
JUDGMENT PASSED BY THE PRL. SESSIONS JUDGE AT BIDAR IN
SPL. CASE (P.C. ACT) NO. 13/2011 DATED 14.02.2014.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.11.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of conviction and order of sentence passed in Spl.Case (PC)No.13/2011 dated 14.02.2014 on the file of Principal Sessions Judge at Bidar for the offences punishable under Sections 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988( hereinafter for brevity referred to as 'the PC Act').
2. The factual matrix of the case is that the complainant in the complaint dated 29.07.2009 made an allegation that his daughter had to receive bond of `10,000/- under Bhagyalakshmi Scheme from the Government. The said bond was to be issued through Anganwadi Teacher of Bagdal village and when he met her five days ago, she demanded an amount of `1,500/- as 3 bribe. But he refused to pay so much of amount, then he returned. On 29.07.2009 at about 11.00 a.m., again when he approached her, she demanded money and the same was bargained to `1,200/- and she gave concession of `300/-. He recorded the conversation of the two and gave the complaint to Lokayukta Police along with cassette wherein he had recorded the conversation. A case has been registered and entrust mahazar was conducted in terms of Ex.P1 in the presence of panch witnesses PWs.1 and 2. Thereafter trap was led and she was found in possession of the notes, and further investigation was conducted and filed the chargesheet for the offences punishable under Sections 7, 13(1)(d) read with section 13(2) of PC Act. The accused was secured and not pleaded guilty and claimed to be tried. The prosecution examined PWs.1 to 9 and got marked documents as per Exs.P1 to P19 and MOs.1 to 10 are marked. The statement of accused under section 313 of Cr.P.C., was recorded. Thereafter, the trial Court after appreciation of both oral and documentary evidence convicted the accused for the 4 above said offences and imposed sentence of 6 months and fine of `1,000/- for the offence punishable under Section 7 of the PC Act and for a period of one year and to pay fine of `1,000/- for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act. Hence, the present appeal is filed questioning order of conviction and sentence.
3. The main contention urged in this appeal is that the learned trial Court judge has failed to apply his judicious mind and committed an error in appreciating the evidence and failed to consider the fact at Ex.P15 wherein it is alleged that sanction was given for prosecution. In fact, it is clearly mentioned that accused was working on honorary basis and service rules are applicable to the Government employees and not applicable to the accused. Hence, there is no sanction at all for prosecution, since she is not a public servant as per Ex.P15. Hence, very launching of prosecution against her is false and frivolous and hence, the judgment is not sustainable in the eye of 5 law. It is also contended that the entire evidence led by the prosecution is not corroborating the true facts and the story of the prosecution narrated, is artificial and created one. Hence, the judgment is liable to be set aside. The learned counsel in his oral argument vehemently contended that appellant is not a permanent employee and it does not attract the PC Act and the proceedings under penal provisions ought to have been initiated, when once the appellant is not a public servant the proceedings under the PC Act ought not to have invoked. He further contends that no sanction is obtained and evidence available on record is not consistent and not corroborated with each other.
4. The learned counsel in support of his argument relied upon the judgment of Hon'ble Apex Court in the case of Anil Kumar and Others vs. M.K.Aiyappa and Others reported in (2013) 10 SCC 705 wherein referred section 19 of the PC Act regarding previous sanction is necessary for prosecution and also brought to the notice of this Court paragraph Nos.13 and 14 wherein the Court has discussed 6 that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments, the learned Magistrate cannot order investigation against a public servant while invoking powers under section 156(3) of Cr.P.C. The Hon'ble Apex Court further observed that the sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. Hence, without the sanction, the prosecution has initiated the proceedings and the same is bad under law.
5. Per contra, learned Special Public Prosecutor for respondent-Lokayukta vehemently contended that she was working as Anganwadi Teacher and act of collecting bribe is not an official duty and PW.4 in her evidence has categorically stated that it is not official act and hence, sanction is not required. It is clear that bond was handed over to the complainant to deliver the same to the beneficiary but she has demanded bribe and the same is 7 not official act. The learned counsel for Lokayukta relied upon Ex.P15 and also brought to the notice of this Court, section 19 of the PC Act. Further he contends that accused cannot raise the said issue with regard to validity of sanction in the appeal stage and ought to have been raised this issue before the trial Court and the same has not been done. The learned counsel in support of his argument relied upon the unreported judgment of this Court dated 25.04.2019 passed in Criminal Appeal No.2680/2010 wherein this Court held that sanction has not been disputed and question of examining the sanctioning authority cannot be accepted. The counsel relied upon the judgment of the Hon'ble Apex Court in the case of L.Narayana Swamy vs. State of Karnataka in criminal appeal No.721/2016 and brought to the notice of this Court paragraph No.13 wherein discussed the Legislature clearly provided that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office. It further observed that there was no question of 8 appellants' getting any protection by a sanction. The High Court was absolutely right in relying on the decision Prakash Singh Badal to hold that the appellants had abused entirely different office or offices than the one which they were holding on the date of which cognizance was taken and therefore there was no necessity of sanction under section 19 of the PC Act. Where the public servant had abused the office which he held in the check period but had ceased to hold that office or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.
6. Having heard the appellant's counsel and the learned counsel for the respondent-Lokayukta and also on consideration of material available on record, the points that arise for consideration before this Court are as follows:
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1. Whether the trial Court has committed an error in convicting the accused for the offences punishable under Section 7, 13(1)(d) read with section 13(2) of PC Act?
2. Whether the conviction is not sustainable in the absence of any sanction?
3. What order?
Point No.2:
7. This Court would like to consider the material on record with regard to sanction is concerned. Admittedly, the appellant was working as a Anganwadi Teacher and with regard to her status the trial Court has taken note of section 21 of IPC and extracted the same. The word 'public servant' is defined as a person falling under any of the descriptions mentioned therein. The trial Court in paragraph No.19.4 in detail discussed by referring section 21 of IPC and comes to the conclusion that accused is a public servant, who is admittedly drawing salary from the government though she is not a permanent employee working for State of Karnataka but getting salary from the 10 State Exchequer, hence, rejected the contention of appellant that the appellant is not a regular public servant.
8. The appellant also not disputed the fact that she was getting salary from the State Exchequer. The main contention of the accused/appellant's counsel before this Court is that the trial Court failed to consider the document Ex.P15 and on perusal of Ex.P15, it is observed that the appellant was getting honorarium and no rules and regulations of Government Employees is applicable and recommendation given to her was already withdrawn and sanction was given to file the chargesheet. First of all, admittedly she is not a permanent employee, she was appointed based on the honorarium payable to her and Ex.P15 is very clear that she is not a permanent employee of the Government. She was discharging her duties by receiving the honorarium and when such being the facts and circumstances of the case, the very contention of the appellant that no sanction was obtained cannot be accepted. It is admitted fact that immediately after the 11 trap mahazar, her recommendation was withdrawn and the same is evident from document Ex.P15. Ex.P15 (b) letter addressed to the concerned department seeking sanction is also placed before the Court. Having considered Exs.P15(a) and (b), it is clear that she is not a permanent employee and she was discharging the duties based on the honorarium paid to her. The document Ex.P15(c) is very clear that rules and regulations are not applicable to the Anganwadi Teacher and service was only honorary service. The documents clearly disclose that recommendation given to her was withdrawn on 08.04.2010 itself. Ex.P15(a) was passed on 10.05.2010 after Ex.P15(c). Hence, the appellant cannot contend that there was no sanction to prosecute the appellant herein and very initiation of the proceedings is bad in law but the fact that she was getting honorarium from the State Exchequer is not disputed. Hence, the very contention of the learned counsel for the appellant that in the absence of sanction, the trial Court ought not to have convicted the accused invoking sections under the PC Act. Hence, I do not find any substance in the 12 contention of learned counsel for the appellant. Hence, I answer point No.2 in negative.
Point No.1:
9. Now the question before this Court is whether the prosecution evidence inspires confidence of the Court whether the accused has committed the offence as alleged in the chargesheet. The prosecution mainly relies upon the evidence of PW.1 to 9. Out of those witnesses PW.3 is the complainant. I would like to take out the evidence of PW.3 complainant. In his evidence, he stated that he went and met the accused on 29.07.2009 and at that time, she demanded an amount of `1,500/- and she reduced `300/- but she did not agree and he took 2 days' time and thereafter he went to Lokayukta police and they gave him cassette and he recorded the conversation between him and the accused and gave the complaint, in terms of Ex.P11 and also handed over the cassette of conversation. Thereafter he was asked to come on the next day and accordingly, he went to the office of Lokayukta and 13 respondent Police secured panch witnesses and got introduced them to draw the entrustment mahazar and before that he gave the amount of `1,200/- to the accused i.e., 2 notes of `500/- each and 2 notes of `100/- each. The phenolphthalein powder was smeared on the said notes and given instructions to PW.1 who accompanied the complainant and accordingly, he and PW.1 went to the Anganwadi center and gave the money, when she demanded and thereafter gave the signal and respondent police and panch witnesses came and apprehended her and did the formalities and instructed the accused for washing her hands and the same turned to pink colour. This witness was subjected to cross-examination. In the cross- examination it was suggested that in order to get Bhagyalakshmi bond, the caste certificate, income certificate and birth certificate are necessary. It is suggested as defence that the accused only got the caste certificate and says that he only brought and gave the same. But he does not have any document to prove the same that he only gave the said documents. The second 14 defence which was raised in the cross-examination of PW.3 that accused voluntarily came and told that she would get the Bhagyalakshmi bond and the same was also denied and he categorically stated that he only gave the application. He asserts that in the complaint, he has mentioned that she was demanding the amount, five days prior to giving the complaint and further asserts that she demanded `1,500/- but he agreed to pay an amount of `1,200/-. But he did not disclose the same to his villagers. It is also his evidence that he only got it typed and one Avinash read and explained and panch witnesses also seen the same and she alone accompanied the office of Lokayukta. In the cross-examination further suggestion was made that the panch witness PW.2, Bhudevi not kept the amount in his pocket and the same was denied. He says that when they went to the accused, it was around 11.00 a.m., and when he demanded bond, at that time, she demanded money and he gave the same. He also asserts that after it is trapped, the accused was removed from the job. It was suggested that conversation available 15 in MO.1 belongs to Khaja Moinuddin and does not belong to him and the same was also denied.
10. The other two witnesses are PWs.1 and 2 who are the panch witnesses. PW.1 in his evidence says that he was called at the Lokayukta office and thereafter entrustment mahazar was conducted and PW.2 kept the money in the pocket of complainant after smearing the phenolphthalein powder and other formalities were done in the office of Lokayukta and instruction was given to the complainant that only on demand he has to pay the money and gave instructions to signal them. He also identifies his signature in the Ex.P1 i.e., in entrustment mahazar and categorically states that he accompanied PW.3 in the Anganwadi centre and PW.3 gave the money, when she demanded money and the very same notes which have been smeared with powder were handed over to her and complainant gave the signal, at that time, it was around 11.15 a.m., and she was subjected to trap mahazar. The accused after hand wash, took out the money which was 16 kept by the side and the same was also seized and got confirmed the note numbers, the accused also gave the reply in terms of Ex.P3 but false reply was given. This witness was also subjected to cross-examination and in the cross-examination, it was stated that he was at the distance of 4 to 5 ft., from the complainant. It is suggested that the PW.3 did not go inside the office, but came back and signaled and the said suggestion was denied and nothing is elicited in the cross-examination of PW.1 with regard to he has not heard the conversation between the complainant and accused and not witnessed for having paid the amount.
11. The other witness PW.2, who is also the panch witness both in respect of entrustment mahazar and trap mahazar, speaks about the procedure adopted while doing trap mahazar. It is her evidence that around 11.15 a.m., the complainant came out and gave the signal and immediately all of them rushed to the Anganwadi centre and complainant explained what had happened inside and 17 also pointed out the accused and witnesses also identified the accused before the Court. It is the specific evidence that sodium carbonate solution was prepared in two bowls and both the hands were subjected to wash which were turned to pink colour and the same was also seized. The bonds and attendance register was also seized in terms of Exs.P7 and P8 and identified her signature and reply of the accused also marked as Ex.P3. This witness was also subjected to cross-examination. In the cross-examination, it was suggested that she had been to Lokayukta office in the evening at about 5.15 p.m., and instructed to come on the next day. It was suggested that she gave the evidence as per instructions of Lokayukta police by by-hearting the same and the same suggestion was denied. It is elicited that they went to Anganwadi center at about 10.30 a.m., The Bagdal village is at the distance of half a kilometer from Chincholi. PW.2 also says that PW.1 accompanied PW.3 and they all were waiting and nothing is elicited in the cross-examination to disbelieve the evidence of PW.3. The other witness PW.9, who received the complaint and 18 registered a case and did the formalities of entrustment mahazar and trap mahazar securing the panch witnesses and these witnesses also reiterated the evidence of PWs.1 to 3. In the cross-examination, it was elicited that the complainant brought the typed complaint. It was elicited that after conducting trap, he did not enquire with regard to MO.1. It was suggested that the conversation available in MO.1 does not belong to the complainant and accused and the said suggestion was denied. He admits that trap was held at Anganwadi Centre No.3 and thereafter they visited Anganwadi Centre No.1 i.e., for securing attendance register. It was suggested that complainant had not handed over the money or gave any signal and money was recovered at the instance of accused and the same was denied. The accused also examined herself as DW.1 and in her evidence she admits with regard to bond that is available with her. There was an order that the Bhagyalakshmi bonds to be distributed in a public function through Gram Panchayat President or Member. If there are 7 to 8 bonds, the same will be given in a public function, 19 however, there were only two bonds and hence, they were not given in a public function. DW.1 claims that social worker, Khaja Moinuddin has told that she should take the money and allow him to take money. When the accused was on leave, the said Khaja Moinuddin came and demanded the bonds and she replied that she would give bonds after her leave period. The said Khaja Moinuddin took her to the Anganwadi centre No.3 where PW.3, and other officers and Khaja Moinuddin were there. But she claims that prior to this incident, she availed the hand loan from PW.3 and he gave the amount of `500/- and the said demand was made prior to giving the bond but she claimed that she demanded `2,000/- but he gave an amount of `1,000/- and she had demanded that amount for hospital expenses of her husband and not demanded any bribe amount from PW.3. This witness was subjected to cross- examination. In the cross-examination, it was elicited that she has not given any complaint to the higher office when that Khaja Moinuddin used to visit the Anganwadi centre making enquiry with regard to the bond. It was also 20 elicited that she gave the document to her advocate with regard to ill-health condition of her husband and whether she does not know the same are given to the Court or not. It was also elicited that she has not produced any document to show that she was on leave for a period of 3 days. It was suggested that she has not taken any hand loan from PW.3 and the amount which was received was only bribe amount and the same was denied. In her further cross-examination, DW.1 denies Ex.P4, photos but Court observed that in the said photo accused also depicts. Having considered both oral and documentary evidence, available on record, particularly demand is concerned, PW.3 categorically states that accused demanded an amount of `1,500/- and after negotiation it was settled to `1,200/-. He was not having any interest to pay the bribe amount hence, he approached Lokayukta police. The Lokayukta police gave the cassette with regard to conversation and accordingly conversation was recorded in MO.1. It was also the finding of prosecution that panch witnesses PWs.1 and 2 were secured and entrustment 21 mahazar was conducted and thereafter PW.1 accompanied PW.3 to the said Anganwadi Center and accused demanded money and he has given the money and also recovery was made from the accused. Both hands of accused were subjected to wash and the same were turned to pink color. The FSL report which is marked at Ex.P18 is clear that both hands turned pink. It is also not in dispute that Bhagyalakshmi bond was in the custody of the accused. It is specific case of PW.3 that accused demanded the bribe amount and witnesses also categorically stated that PW.3 gave 2 notes of `500/- each and 2 notes of `100/-each and hands were smeared with phenolphthalein powder and the witnesses accurately depose the timing of trap with regard to time of trap. It is also important to note that evidence of PW.3 is corroborated by the evidence of PWs. 1 and 2. PW.1 a shadow witness says that he accompanied PW.3 and gave the money. The accused took different defence. First defence that she only got the caste certificate, birth certificate and income certificates of daughter of PW.3. PW.3 categorically stated that he only obtained the 22 certificates and given to her. Another defence is that accused only approached PW.3 to get the bond and the same was also denied by the PW.3. It is also important to note that in the defence evidence the accused availed hand loan from the complainant and not disputed the fact that she has received the amount from PW.3 and also claims that she was on leave for 3 days but no documents are produced to prove that she availed leave. In the cross- examination, she asserts that she has not produced any document that she has availed leave for a period of 3 days and in the cross-examination of PW.1 and 2 who are the panch witnesses nothing is elicited to disbelieve the evidence of these two witnesses and evidence of PW.1 and 2 is consistent with regard to entrustment mahazar as well as the trap mahazar.
12. Having considered the material on record, the contents of the complaint and entrustment mahazar and trap mahazar, each and every witnesses' evidence is clear and corroborates with each other. There is no material to 23 disbelieve the evidence of these witnesses and hence, I am of the opinion that the trial Court has not committed any error in convicting the accused for the above said offences.
13. Hence, I do not find any merit in the appeal to reverse the finding of the trial Court. Regarding sentence is concerned, maximum sentence of one year is awarded for the offence under section 13 (1)(d) of the PC Act and 6 month for the offence under section 7 of the PC Act and the same is not disproportionate. Having considered the quantum of bribe amount, it has been received and with regard to sentence also, I do not find any material to interfere with the order of the trial Court.
14. In view of the discussion made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE VNR