Karnataka High Court
Hanmantappa vs The State Of Karnataka on 12 February, 2014
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IN THE HIGH COURT OF KARNATAKA, GULBARGA
BENCH
Dated this the 12th day of February, 2014
BEFORE
THE HON'BLE MR. JUSTICE B.V. PINTO
Criminal Appeal No.472/2010
BETWEEN:
1. Hanmantappa
S/o Channabasappa Ambiger
Age: 51 years, Occ: FDA
District Health and Family Welfare Office
Bijapur
2. Gopal
S/o Hanmanth Chalawadi
Age: 60 years
Occ: Superintendent
District Health and Family Welfare Office
Bijapur ... Appellants
(By Smt Manjula N. Tejaswi, Adv.,)
AND:
The State of Karnataka
Represented by Lokayuktha Police
Bijapur ...Respondent
(By Sri A. Syed Habeeb, Spl.PP for Lokayuktha)
This Criminal Appeal filed under Section 374(2) of
Cr.P.C by the Advocate for appellants praying to set aside
the Judgment of Conviction and Order of sentence dated
30.3.2010 passed by the Special Judge, Bijapur in Special
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Case (LOK) No.1/06 convicting the appellants/accused for
the offence punishable U/Ss. 7 and 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988 read
with Section 34 of IPC. The appellants/accused sentenced to
undergo RI for two years and to pay fine of `5,000/- and in
default SI for one month for the offence punishable U/S. 7
read with Section 13(2) of the Act and further they are
sentenced to undergo RI for two years and to pay fine of
`5,000/- and in default SI for one month for the offence
punishable under Section 13(1)(d) read with Section 13(2) of
the Act. Both sentences shall run concurrently.
This Criminal Appeal coming on for Dictating
Judgment this day, the Court delivered the following:
JUDGMENT
This Appeal is filed challenging the Judgment dated 30.3.2010 passed by the Special Judge at Bijapur in Special Case (LOK) No.1/2006 convicting the appellants/accused for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ['PC Act' for short] and sentencing each of them to undergo R.I. for two years and to pay fine of `5,000/- and in default S.I. for one month for the offence under Section 7 read with Section 13(2) of the PC Act and further sentencing them to undergo R.I. for two years and to pay fine of `5,000/- and in default S.I. for one month for the offence under Section 13(1)(d) read 3 with Section 13(2) of the PC Act with a direction that both the sentences shall run concurrently.
2. It is the case of the prosecution that, accused Nos.1 and 2 were working as FDA and Superintendent respectively in the District Health and Family Welfare Office at Bijapur during the relevant period. In furtherance of their common intention, both the accused demanded and accepted from the District Health Centre ('DHC' for short) and Primary Health Centre ('PHC' for short) situated within the Bijapur District, 20% of the bill amounts, a gratification other than legal remuneration as a motive for passing TA Bills and thereby both the accused have committed the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act read with Section 34 of IPC.
3. It is the further case of the prosecution that during the year 2005-2006, while so working as FDA and Superintendent respectively in the office of the District Health and Family Welfare, Bijapur, both the accused accepted 20% of the bill amounts belonging to the DHCs and 4 PHCs, a gratification other than legal remuneration as a motive for passing TA bills and thereby they have committed criminal misconduct punishable under Sections 7 and 13(1)(d) read with Section 13(2) of PC Act read with Section 34 of IPC.
4. The prosecution in order to prove the case has examined in all 20 witnesses; got marked Exs.P1 to P148 and produced MOs.1 to 6. The defence of the accused was one of total denial. They have got marked Exs.D1 and D2 being a portion of sentence in Ex.P1 and also letter dated 26.2.2005 from the Police Inspector, Lokayuktha, Bijapur addressed to the Deputy Director, Karnataka Water Development Board, Bijapur. However, by the impugned Judgment, the Special Court found the accused guilty, convicted and sentenced them as aforesaid. It is this Judgment of conviction and sentence, which has been challenged by the appellants in this appeal.
5. The prosecution in this case commenced with a suo motu complaint lodged by the Inspector of Police, 5 Karnataka Lokayuktha, Bijapur on 26.2.2005. In the said complaint, the Inspector has stated that the accused persons, who were working in the office of District Health and Family Welfare Office at Bijapur, were carrying on the work of preparing bills for reimbursement of TA bills of all the PHCs and Taluk Hospitals within the Bijapur District for the year 2004-2005 and since the last date for submitting of such bills was 28.2.2005, the accused informed all the concerned hospital staff through phone to produce the relevant TA Bills for passing and for that purpose to obtain counter signatures on the bills. It was demanded by the accused that a sum equal to 20% of the total bills are required to be paid to them and for this purpose they would be available in the office of accused No.1-Ambiger. It is stated in the complaint that the aforesaid accused while discharging their duties in the office of District Health Office, Bijapur have been demanding money, which is in the form of bribe for passing TA Bills and have been accepting the same from them. Hence, the Police Inspector has requested for taking suitable action through the aforesaid suo motu 6 complaint. The said complaint is registered as Crime No.1/2005 in the Lokayuktha Police Station, Bijapur. Thereafter, the Inspector summoned two persons by name Ahamadsab Buransab Mulla, who is the FDA in the office of Deputy Director of Public Instructions, Bijapur and one Sri Prabhuling Mahantappa Kumbar, who was an Accounts Officer in the Karnataka Water Resources Department and thereafter a trap was laid in the residence of accused No.1. All the aforesaid persons went to Bijapur town and thereafter they went near the house of accused No.1 and laid a watch on the house of accused No.1. It was observed that many people were entering the house with handbag and files and were coming out of the said house. At about 10.30 a.m., the Inspector along with the aforesaid two persons reached the house of accused No.1 and called the name of Ambiger by tapping the door. A person opened the door and came out and introduced himself as Hanamantappa Channabasappa Ambiger. The Inspector along with the two witnesses entered the house and introduced himself as Lokayuktha Inspector and narrated the purpose for which he had come 7 near the house. The Inspector thereafter conducted a personal search of his own and of the witnesses and recorded the amounts found in the pockets. Thereafter, it was found that there were about 13 persons inside the house of accused No.1 apart from accused Nos.1 and 2. Thereafter he ascertained the identity of persons present in the house, who have stated that they are the staff of various PHCs of Bijapur District. It was further found that accused No.2-Gopal Hanamant Chalawadi was in possession of a sum of `10,500/- and accused No.1-Hanmantappa Channabasappa Ambiger was in possession of `12,050/- in their respective pockets. The said amount was of different denominations. The Inspector thereafter checked the cupboard situated behind the chairs, where the accused were sitting and found a sum of `16,225/- comprising of various denominations. The Inspector seized all these three amounts by noting their denominations in the Mahazar. The Inspector also seized certain bank passbooks belonging to one Smt. Saraswathi Hanmantappa Ambiger. So also certain other documents regarding the bank accounts. The 8 Inspector thereafter verified the documents available on the table of the accused, which were 69 in number and they were the bills pertaining to TA allowance of various PHCs. The Inspector took them to his custody. The Inspector thereafter took the statement of both the accused, arrested them and took them to his office after completing the mahazar, which is marked as Ex.P1 during the trial. The matter was thereafter investigated by the Inspector Nagaraj- PW.19 and after conclusion of investigation, charge sheet came to be filed.
6. During the trial, Sri Ahamadsab Buransab Mulla the attestor of Mahazar is examined as PW.1. He has stated regarding his participation in the procedure whereunder the aforesaid raid was conducted by PW.19-S.M.Nagaraj, the Inspector. He has also spoken regarding the seizure of the cash amount from the house of accused No.2. He has identified the documents prepared by the IO. PW.1 has been cross-examined by the defence suggesting that he has been falsely deposing before the Court in order to please the Lokayuktha Inspector.
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7. PW.2-Prabhuling Mahantappa Kumbar is an another witness, who was present at the time of the raid, who was also supported the case of the prosecution regarding the raid conducted by PW.19-Inspector of Police.
8. PW.3-Arjun Billu Rajapur is a Pancha for seizure of pass books by the Inspector on 4.4.2005 from the premises of Siddeshwara Co-operative Bank, Treasury Colony Branch, Bijapur.
9. PW.4-H.B.Harijan; PW.5-J.S.Ahirsang; PW.6- Narayan Somu Rathod; PW.7-Gangadhar Anantrao Shindhe; PW.8-Md. Yaseen Kashimsab Momin; PW.9-Shivappa Channappa Natikar; PW.13-Ramesh Nagappa Managuli; PW.14-Channamallayya Sharabhayya Kanakalmath; PW.15- Basalingappa Sanganabasappa Rayannavar and PW.16- Sanganabasappa Kallappa Korabu, have turned hostile to the case of prosecution.
10. PW.10-Anand Vasudevrao Badami has stated before the Court that he is the office Superintendent of District Hospital, Bijapur. During the relevant period, he was 10 working as FDA in the District Leprosy Hospital, Bijapur. It was part of his duty to prepare the TA Bills of the office staff. He knows accused No.2 who was working as a clerk in the DHO office. In February 2005, accused phoned and informed him that they are passing the TA bills of his office and for this purpose he should pay 20% of the bill amount as bribe. PW.10 thereafter discussed this matter with his staff members and collected 20% of the bill amount and took the same along with the peon by name Shindhe to the office of the first accused and paid the same to accused No.1. He has stated that he has paid a sum of `20,000/- as bribe to accused No.1. The total TA bill of his branch/centre was `1,10,000/-. Hence, he has paid a sum of `20,000/- to accused No.1. Whereafter, accused No.1 promised to do his work. The defence has cross-examined PW.10 and suggested that he was deposing falsely at the instance of Lokayuktha police.
11. PW.11-Shrishailgouda A. Patil is the FDA of PHC, Thamba during the relevant period. He has stated that during the last week of February 2005, 2nd accused asked 11 him to come to the office of DHO along with TA bills of his Health Centre and demanded bribe to an extent of 20% of the said bills. He went to the house of the first accused and paid `12,240/- as bribe to accused No.1 towards 20% of the TA bill, which is `61,202/-. Accused No.1 promised to pass the bills. He has identified Ex.P21 as the copy of the bill submitted by him to accused No.1.
12. PW.12-Madarpatel Allapatel Patil, is the Assistant Executive Engineer of P.W.D. Department, who has prepared the sketch of scene of occurrence as per Ex.P116 in the house of accused No.1.
13. PW.17-Dr. Ramakrishna Sangappa Ingale, Medical Officer, PHC, Chandakavathe has stated that, during February 2005, the TA bill of their centre was `45,000/- and that first accused demanded through phone 20% of the said TA bills as bribe and requested him to pay the same within 2 or 3 days. He went to the house of accused No.1 and paid `5,000/- as bribe during morning hours on some day. Accused No.1 was working as Gazetted 12 Assistant. Accused No.2 was in the house of accused No.1. Accused No.1 asked for another sum of `3,000/- when he paid `5,000/- to him. In the cross-examination, it is suggested that he is deposing falsely at the instance of Police Inspector, which suggestion has been denied.
14. PW.18-R.K.Patil, is the Inspector of Police, who has received the credible information and later on handed over the work of the said complaint to PW.19 after registering the case in Crime No.1/2005 and after transmitting the original FIR to the Court as per Ex.P120. PW.18 thereafter completed the investigation and filed the charge sheet.
15. PW.19-S.M.Nagaraj is the Inspector, who has conducted the raid, seized the cash, recorded the statement of the accused and witnesses, prepared the Panchanama, arrested the accused and reported the matter to PW.18 along with the relevant documents.
16. PW.20-Dr. M.G.Prasad was the Director of Health & Family Services, Bangalore during the relevant period. He is the authorised person to grant sanction to 13 prosecute the accused. He has stated that he has perused the report of the Inspector of Lokayuktha and the documents produced along with the same and on being satisfied that a prima-facie case is made out against the accused, he has granted sanction to prosecute the accused for the offences under the PC Act as per Ex.P122.
17. It is from the above evidence of the prosecution witnesses that the learned Special Judge has found the accused guilty and convicted and sentenced them as aforesaid.
18. Heard Smt Manjula N. Tejaswi, learned counsel for the appellants/accused and Sri A. Syed Habeeb, learned Special Public Prosecutor for respondent/Lokayukta.
19. Smt Manjula N. Tejaswi, learned counsel for the appellants/accused submits that the entire procedure conducted by PW.19 is irregular and against the prescribed procedure established by law. The trap conducted by PW.19- S.M.Nagaraj is not in accordance with the legal principles and that the same has violated the principles of natural 14 justice. She has further stated that the trial Court has not taken into consideration the evidence adduced in the cross- examination of the witnesses and has come to the conclusion based on the evidence recorded in the examination-in-chief of all the witnesses. It is also submitted that the amounts seized by the Inspector of Police, Lokayuktha does not tally with the records and therefore no conviction can be based on the above discrepant evidence.
20. Learned Counsel for the appellants has attracted my attention to the cross-examination of certain witnesses, who have stated that when the Inspector of Police came to the house of accused No.1, they were present and thereafter they have handed over the money to the Inspector as demanded by accused No.1. It is submitted that the said evidence cannot be believed since the same is against the natural human conduct. No person would have given any money knowing that the officer present was a Lokayuktha Inspector and that the accused would not have accepted any money in the presence of the Inspector of Lokayuktha. Hence, it is submitted that the prosecution case is concocted 15 one, artificial and dramatic. Hence no conviction could have been based on the said evidence of the prosecution witnesses. Therefore, the learned Counsel submits that the accused are entitled for an order of acquittal and accordingly prayed for allowing the appeal.
21. Learned Counsel for the appellants has cited the following ruling:-
(2010) 2 Supreme Court Cases (Cri) 864 (Banarsi Dass v. State of Haryana).
"19. The above findings recorded by the High Court show that the Court relied upon the statements of PW.10 and PW.11. It is further noticed that recovery of currency notes, Exts.P-1 to P-4 from the shirt pocket of the accused, examined in light of Exts. PC and PD, there was sufficient evidence to record the finding of guilt against the accused. The Court remained uninfluenced by the fact that the shadow witness had turned hostile, as it was the opinion of the Court that recovery witnesses fully satisfied the requisite ingredients. We must notice that the High Court has fallen in error insofar as it has drawn the inference of the demand and receipt of the illegal gratification from the fact that money was recovered from the accused.
20. It is a settled canon of criminal jurisprudence that the conviction of an 16 accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of event is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Applying these tests to the facts of the present case, PW.10 and PW.11 were neither the eye witnesses to the demand nor to the acceptance of money by the accused from Smt. Satpal Kaur (PW.2)
22. Sri A. Syed Habeeb, learned Special Public Prosecutor, on the other hand, submits that the act of accused would amount to criminal misconduct in accepting the money for the work done by them as a part of their public duty and therefore having regard to the fact that huge sum of money was recovered by PW.19 when he conducted the raid itself indicates that they were in possession of bribe amount and therefore the accused are liable to be convicted under Section 20 of the PC Act by drawing the inference that the said amount seized from their possession was collected as illegal gratification. He also submits that the order of 17 conviction is based on the clear and cogent evidence of prosecution witnesses namely., PWs.10; 11; 14; 17 and 19. Hence, he submits that the appeal may be dismissed by confirming the order of conviction and sentence imposed on the appellants.
23. On a careful scrutiny of the entire materials on record, it is seen that the case rests on the evidence of PWs.1, 2 and 19 on the one hand, who speak about the recovery of money from the possession of accused persons and PWs.10, 11, 14 and 17, who speak about the handing over of money by them to the accused on their demand and acceptance of the same by the accused, thus, attracting the provisions of Sections 7 and 13(1)(d) read with Section 13(2) of PC Act read with Section 34 of IPC. The evidence of PWs.1 and 2 very specifically states that on the date of raid, they had infact accompanied PW.19 to the house of accused No.1. It also further indicates that when they entered the house of accused No.1, accused were questioned by PW.19 and when their pockets were checked, there was money in their pockets and there were one or two bank pass books. PW.1 18 says that there was a sum of `16,000/- in one cupboard of the accused and prior to that a sum of `12,000/- was seized from the person of accused No.1 and a sum of `10,000/- was seized from the person of second accused. The passbooks were in the name of wife of first accused. The passbooks contained more than `1,00,000/- each as credit. There were also bills, inkpad and seals etc., and about 400 TA bills belonging to the District of Bijapur. In the cross- examination, PW.1 has stated that behind the cupboard, a sum of `16,225/- was available and a sum of `12,050/- was found in both the pockets of pant of accused No.1. He has stated that a sum of `10,000/- was found in the pocket of accused No.2. However, he has further stated in the cross- examination that he is not aware as to who gave the amount to the accused and from whom the amount was received. He has not seen any person giving any amount to the accused in his presence. PW.2-Prabhuling, though in the chief-examination has stated that the amount was found in the pocket of accused Nos.1 and 2, the quantum of amount thus seized from accused Nos.1 and 2 differs from that of the 19 evidence of PW.1. Even PW.2 has stated that though there were 10 to 15 persons in the house, he does not remember any other person and he does not know as to whether accused No.2 himself removed the amount from the pocket or the Inspector removed the same. He also does not know as to from which pocket of accused No.2, the amount was removed, so also, the amount taken from the possession of accused No.1. It is elicited in the evidence of PW.2 that a sum of `16,225/- was removed by CW.22, but he does not know the denominations of the said amounts, so also as to who gave the money and at what time. He has stated that there were about 7 people inside the house, at that time, and that after going inside the house, the Inspector locked the front door from inside.
24. From the above evidence of PWs.1 and 2, who are the eyewitnesses to the seizure, it is clear that the evidence adduced by them is neither coherent nor cogent, but is ambiguous in nature. The learned Special Judge has not diverted his attention to the cross-examination of these witnesses to show that a particular amount of money was 20 infact seized from the possession of a particular accused. Further, both the witnesses have not stated as to the source of the said amount, that is from which of the accused the amount has been seized. Under the circumstances, I am of the considered opinion that the prosecution has not proved the case against the appellants so far as the demand and acceptance of money beyond reasonable doubt and hence, the accused are entitled for benefit of doubt so far as the element of demanding and accepting the bribe amount by the accused.
26. A very interesting point that has to be considered in this case is that before PW.19 conducted a raid in the house of accused No.1, there was no specific complaint lodged by any person regarding the demand and acceptance of the amount. PW.19 has acted on the basis of the information received by him, the source of which is not disclosed. Therefore, in the complaint no mention has been made as to from whom the accused have demanded the money and necessarily the aspect of demand is not at all proved in this case. Though PWs.10, 11 and 17 state that 21 accused had telephoned a few days back asking for 20% of the bill amount from them, nothing prevented these PWs.10, 11 and 17 to approach the Lokayuktha prior to registration of the case and to lodge a formal complaint against the accused and hence, the prosecution has not proved the offence against the accused under Section 7 of the PC Act beyond all reasonable doubt.
26. Sri A. Syed Habeeb, learned Special Public Prosecutor, on the other hand, submits that in this case, a presumption under Section 20 of the PC Act has to be drawn firstly because though there was no order from their superior, accused Nos.1 and 2 have taken all the files from the office to their residence. It is submitted by him that the rules of procedure of the office requires that no files of a Government office shall be removed outside the office without the permission of head of Department and PW.20 has categorically stated in this case that no such permission was granted to accused Nos.1 and 2 for taking the TA bills from inside the office and to take it to the house of accused No.1. He further submits that when PW.19 conducted a 22 raid, huge amount was found in the possession of accused Nos.1 and 2 and since the other witnesses namely., PWs.10, 11, 14 and 17 were public servants themselves, their evidence cannot be lightly brushed aside and the accused are liable to be convicted for criminal misconduct for being in possession of unexplained amount with them.
27. It is to be seen that recovery of money alone is not sufficient to hold a person guilty of an offence. In this case, none of the witnesses say specifically as to the time and place, where the accused had demanded money and the place where the said amount was paid. Some of the witnesses state that about two days prior to the date of incident, they had come to the office of accused No.1 and had paid the amount. Some of the witnesses say that they had paid the money along with the bills on the day itself and had paid them to the accused. However, the specific amount paid by those witnesses is not identified and specified nor they have identified the same as the same notes paid by them while they were in the witness box. All that they have stated in the cross-examination is that they are not aware as 23 to the denomination of notes seized at the spot on the date of trap, which indicates that a specific charge for having received a specific amount from a particular witness is not clearly established in this case by the prosecution and therefore, though there is sufficient suspicion regarding the acceptance of money, suspicion alone cannot take the place of proof and hence it cannot be said that the accused have accepted the money and therefore they are guilty of criminal misconduct. It is also submitted by the learned Special Public Prosecutor that the accused have not given any plausible explanation immediately after they were found in the possession of huge quantity of money. Possession of money itself is not an offence, unless there is a complaint lodged by any specific person. In the absence of any such complaint registered for having received the money in consequences of the demand, mere possession cannot lead to an order of conviction.
29. From what has been discussed above, it is clear that the prosecution has failed to establish the guilt of the accused and the learned Special Judge has erroneously 24 convicted the accused taking into consideration only the evidence adduced in the chief-examination of the witnesses and by not adverting to the evidence brought out in the cross-examination.
30. In the result, the following order is passed:-
ORDER
(i) The appeal is allowed;
(ii) The order of conviction and sentence dated 30.3.2010 passed by the Special Judge at Bijapur in Special Case (LOK) No.1/2006 for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, is hereby set aside and the appellants are acquitted of the said offences charged against them;
(iii) The bail bonds executed by the appellants is hereby discharged; and
(iv) Fine amount, if deposited, shall be refunded to them.
Sd/-
JUDGE cp*