Karnataka High Court
M Narayana Reddy S/O Late Muni Reddy vs State Of Karnataka on 10 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.317/2011
BETWEEN:
M. NARAYANA REDDY,
S/O LATE MUNI REDDY,
AGED ABOUT 45 YEARS
FIRST DIVISION SURVEYOR,
ADLR OFFICE, NAZARBAD,
MYSURU. ... APPELLANT
(BY SRI A.H. BHAGAVAN, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY LOKAYUKTHA POLICE,
MYSURU.
REPRESENTED BY THE SPECIAL PROSECUTOR,
HIGH COURT BUIDILNGS,
BENGALURU. ... RESPONDENT
(BY SRI VENKATESH ARBATTI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE III ADDITIONAL
SESSIONS JUDGE, MYSURU IN SPL. CASE No.46/2007 DATED
05.03.2011 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent - Lokayuktha police.
2. This appeal is filed challenging the judgment of conviction and sentence dated 05.03.2011 passed in Special Case No.46/2007, on the file of the III Additional District and Sessions Judge, Mysore, convicting the accused for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('P.C. Act' for short) and sentencing to undergo simple imprisonment for a period of one year and directing to pay a fine of Rs.5,000/-.
3. The factual matrix of the case is that the complainant M.N. Ravi was having 19 ¾ guntas of land in Survey No.18/2 of Bogadi Village, Mysore and he had given an application to the Tahsildar, Mysore Taluk on 18.01.2006 for measuring his land and to fix the boundaries and afterwards his application was given to the Assistant Director of Land Records ('ADLR' for short) for surveying the land. The accused was working as the First Division Surveyor in the office of ADLR and he had to survey the land of P.W.1. Accordingly, the accused 3 visited the land of P.W.1 on 20.2.2006 and not surveying the land properly and when he made requesting him to conduct survey properly he demanded Rs.1,000/- to carry out the proper survey work and promised that he would complete the survey work and prepare the sketch and also do the phodi work. When the complainant asked the accused as to why he should pay the money for the work, the accused told him that if he pays the money he would conduct the survey properly or otherwise he will not survey and he asked the complainant to pay the amount on 23.02.2006. Later P.W.1 went to the Lokayuktha office on 23.02.2006 and lodged a complaint with regard to the demand and case has been registered and securing panch witnesses entrustment mahazar was conducted and thereafter conducted the trap. The accused was secured before the Trial Court and he did not plead guilty and claimed trail. Hence, the prosecution examined P.Ws.1 to 5 and got marked the documents at Exs.P.1 to 28 and also got marked M.Os.1 to 16(a). The accused was examined under Section 313 of Cr.P.C. The accused examined one witness as D.W.1 and got marked the documents at Exs.D.1 to 3. The Trial Judge after considering both oral and documentary evidence placed on record, convicted the accused 4 and sentenced him. Hence, the present appeal is filed before this Court.
4. The main contention of the appellant/accused is that the evidence adduced by the complainant before the Court is quite contra to what he has stated before the police. It has come on record that there was rivalry between the complainant and D.W.1. The complainant thinking that the accused may support D.W.1, has foisted a false case. The evidence of demand and acceptance is too vague and the evidence of the witnesses is contrary to each other. It is the case of the prosecution that the accused soon after receiving the tainted money, he has kept the same in the bag, whereas after the trap when the accused was questioned, he has produced the same from his pocket. The sanctioning Authority without application of mind accorded the sanction to prosecute the accused. The Trial Judge failed to consider the material inconsistency and contradictions. The accused has given the explanation soon after the trap stating that the complainant has forcibly put the money in his bag, even though he has refused to receive the amount. Because of the ill will between P.W.1 and D.W.1, the accused has been made as a scapegoat.
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5. The learned counsel for the appellant in his argument vehemently contend that the case of the prosecution is that a demand was made and the accused has received the money and kept the same in the bag. The defence is that the complainant voluntarily put the amount in the bag. The witness P.W.4 is the one who gave the sanction. P.Ws.1 and 3 are the complainant and shadow witness, respectively. P.W.2 is the entrustment mahazar witness and P.W.5 is the Investigating Officer. P.W.1 in his evidence says that the accused did not count the money, but he received the money and kept the same in the bag. But, P.W.3 in his evidence says that the accused after receiving the money, counted the money and kept the same in the bag. There are contradictions with regard to receiving of the money.
6. The learned counsel would also contend that the voice recorder was given to the complainant and none of the witnesses speak with regard to what had happened to the voice recorder. P.W.1 says that the person who kept the amount in his pocket accompanied him i.e., P.W.2, but the prosecution claims that P.W.3 is the shadow witness. It is also the defence of the accused that the survey was conducted, mahazar was drawn and 6 sketch was also prepared. The accused in his 313 statement produced the documents including the sketch that the work was not pending and survey was already conducted. When the survey was already conducted, the question of demand and acceptance of money does not arise. The accused examined D.W.1, who is the brother of the complainant. D.W.1 categorically says that the accused visited the spot and conducted the mahazar. The defence theory is also supported by the evidence of D.W.1. The learned counsel vehemently contend that the evidence of P.W.1 is not corroborated and there are infirmities in the evidence of the prosecution witnesses. The voice recorder is also suppressed and this Court can draw the adverse inference.
7. The learned counsel for the appellant/accused in support of his contentions relied upon the judgment of the Apex Court in the case of T.K. RAMESH KUMAR v. STATE THROUGH POLICE INSPECTOR, BANGALORE reported in (2016) 3 SCC (CRI) 316. Referring this judgment, the learned counsel would submit that mere recovery of tainted money is not sufficient, unless the demand and acceptance is proved. The learned counsel brought to the notice of this Court paragraph 7 Nos.15 and 16 of the judgment and would submit that the Apex Court has held that demand and acceptance of the same proved to be correct by the prosecution on the basis of phenolphthalein test to prove the acceptance of gratification money and recovery from the appellant, therefore, this Court need not interfere with the impugned judgment and order of the High Court. Therefore, the submission made by the learned counsel on behalf of the State cannot be accepted as there is material contradiction and it is not minor discrepancy with regard to the complaint and the evidence on record. The Apex Court further observed that mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. The Apex Court held that both the ingredients to being the Act within the mischief of Sections 7 and 13(1)(d)(ii) of the Act are satisfied.
8. The learned counsel also relied upon the judgment of the Apex Court in the case of V. SEJAPPA v. STATE BY POLICE INSPECTOR LOKAYUKTA, CHITRADURGA reported in (2017) 3 SCC (CRI) 699. Referring this judgment, the learned counsel would submit that the Apex Court in paragraph 8 Nos.19 to 21 held that mere recovery of tainted money is not sufficient to convict the accused. While invoking the provisions of Section 20, the Court is required to consider the explanation offered by the accused, if any, only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how amount in question was found in his possession, foundational facts must be established by prosecution. The learned counsel referring this judgment would submit that the presumption cannot be drawn in the case on hand. There are discrepancies in the evidence of P.Ws.1 to 3 regarding receipt of the amount from the complainant and keeping the amount in the bag.
9. The learned counsel also relied upon the judgment of the Apex Court in the case of SURAJ MAL v. THE STATE (DELHI ADMINSTRATION) reported in 1979 CRI.L.J. 1087. The learned counsel referring paragraph No.2 of the judgment would submit that mere recovery of amount from the accused is not sufficient and the Court has to take note under which circumstances it is paid and it is not sufficient to convict the 9 accused when the substantive evidence in the case is not reliable.
10. The learned counsel also relied upon the judgment of the Apex Court in the case of MEENA v. STATE OF MAHARASHTRA reported in (2000) 5 SCC 21. Referring this judgment, the learned counsel would submit that mere recovery of the currency note and positive result of the phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence. The charge must be proved beyond reasonable doubt. The corroboration is essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. The learned counsel referring this judgment would submit that in the case on hand also the prosecution failed to prove the case 10 against the accused beyond reasonable doubt. Under the circumstances, he cannot be convicted.
11. The learned counsel also relied upon the judgment of the Apex Court in the case of V. VENKATA SUBBARAO v. STATE REPRESENTED BY INSPECTOR OF POLICE A.P. reported in AIR 2007 SC 489. Referring this judgment, the learned counsel would submit that the presumption that money was accepted as motive or reward, cannot be raised when demand by the accused has not been proved. The learned counsel referring this judgment would submit that there is no material regarding demand and when such being the facts and circumstances of the case, the Court cannot draw the presumption under Section 20 of the P.C.Act.
12. Per contra, the learned counsel for the respondent would submit that the demand was made on 20.02.2006 and the said demand is the first demand and the second demand was made on 23.02.2006. The complainant on the same day went to the Lokayuktha police and lodged the complaint. The Lokayuktha police after securing the panch witnesses, conducted the entrustment mahazar and thereafter conducted the trap. The 11 prosecution witnesses P.Ws.1 to 5, other than P.W.4, are the trap witnesses and they have supported the case of the prosecution. No doubt, the defence also examined one witness as D.W.1, who is none other than the brother of the complainant and got marked the documents at Exs.D.1 to 3. Ex.D.2 is the application given by the complainant and Ex.D.3 is the notice issued to the parties to conduct the survey. The main contention of learned counsel for the accused before the Court is with regard to the non-production of the voice recorder. The learned counsel submits that not producing the voice recorder is not fatal to the case of the prosecution when the other evidence available before the Court are consistent.
13. The learned counsel for the respondent would also submit that it is the defence that the survey was already conducted. When the demand was made and bribe amount was accepted, the very contention that the survey was already conducted, will not come to the aid of the defence. In the case on hand, there is demand and acceptance and whether he conducted the survey or not is immaterial. The complainant in the complaint has stated that the survey was conducted and the accused demanded the money to conduct the survey properly 12 and hence, the said contention cannot be accepted. The learned counsel would contend that the defence pointed out the discrepancy in the evidence of P.Ws.1 and 3 with regard to counting of the money by the accused. P.W.1 claims that the accused received the amount and kept in the bag, but P.W.3 says that after receiving the money, he counted the money and kept in the bag. This discrepancy is only a minor discrepancy and the same is not fatal to the case of the prosecution. Except this minor discrepancy, the evidence of the prosecution witnesses is consistent.
14. The learned counsel would also submit that the evidence of P.W.4, who gave the sanction, is also unchallenged and nothing is elicited that he did not apply his mind while issuing the sanction. The learned counsel would submit that the evidence of P.Ws.1 to 3 and 5 are consistent. In the cross- examination of P.W.5 - Investigating Officer, nothing is elicited to disbelieve the evidence of the prosecution witnesses. Hence, the Trial Judge has not committed any error in convicting the accused. The learned counsel would submit that the principles laid in the judgments referred supra, relied upon by the learned 13 counsel for the appellant, are not applicable to the case on hand. Here is not a case only with regard to recovery of money and the witnesses who have been examined categorically deposed with regard to the demand and acceptance of money. Hence, the judgments are not applicable to the case on hand.
15. The learned counsel for the appellant in reply to the arguments of the learned counsel for the respondent would submit that this Court cannot draw the presumption only on the ground that the bait money was recovered from the accused. The learned counsel reiterated that the land was already surveyed and no work was pending and the question of demand and acceptance does not arise.
16. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent, the points that arise for the consideration of this Court are:
(i) Whether the Trial Judge has committed an error in convicting the accused for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act?
(ii) What order?
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17. Before considering the oral evidence of the prosecution witnesses, this Court would like to refer to the contents of the complaint - Ex.P.1. Ex.P.24 is the FIR. In the complaint dated 23.02.2006, an allegation is made against the accused that he demanded an amount of Rs.1,000/- as bribe money. In the complaint, the complainant has narrated that he is having the land to the tune of 19 ¾ guntas in Survey No.18/2 of Bogadi Village. He gave an application to the Tahsildar on 18.01.2006 and obtained the acknowledgment. The said application was sent to the office of the ADLR and when the complainant went and enquired in the office, he came to know that the accused is going to conduct the survey. He went and met him. The accused asked the complainant to pay Rs.95/- as charges and accordingly he paid the amount and obtained the receipt. Thereafter, he met the accused to survey the land and that on 20.02.2006 when the accused surveyed the land improperly, the complainant requested him to survey the land properly. Hence, he demanded an amount of Rs.1,000/- and he also told that after 2-3 days again he will survey the land, prepare the sketch and will do the phodi. When he questioned as to why he has to pay the money, the accused replied that if he 15 pays the money, he will survey the land properly, otherwise he will not. When he asked as to when he has to pay the money, the accused told to pay the money on 23.02.2006 in the afternoon. The complainant was not having any interest to pay the illegal gratification and hence he went and lodged the complaint and handed over the amount of Rs.1,000/-. The xerox copies of the documents and receipt were also enclosed along with the complaint. The complaint was acknowledged on 23.02.2006 at 12.00 p.m. and the case was registered in Crime No.2/2006. On perusal of the FIR, which is marked as Ex.P.24, the same was acknowledged on 23.02.2006 by the Special Judge at 1.30 p.m.
18. Now this Court has to consider the evidence available before the Court, since this Court has ample power to re-appreciate the evidence placed on record as to whether the evidence available before the Court is properly appreciated or not before the Trial Court in order to come to a conclusion that the accused has committed an offence invoked against him. The prosecution relies upon the evidence of P.W.1, who is the complainant. P.W.1 in his evidence reiterated the averments made in the complaint - Ex.P.1 with regard to demand and 16 lodging of the complaint and also he has deposed with regard to the drawing of the entrustment mahazar following the procedure. It is also his evidence that P.W.3 was sent along with him and the accused was sitting on his chair. When he went and stood before him, the accused replied him to speak in slow voice. P.W.1 enquired about his work and the accused asked him whether he has brought the money. P.W.1 took the amount from his pocked and gave the same to the accused. The accused enquired whether the amount is correct and he replied that the same is in accordance with his demand and to count the same. But the accused did not count the amount, but he received the amount from his right hand and kept the amount in his bag. P.W.1 gave the signal to the Lokayuktha police and when the panch witnesses and the Lokayuktha police came to the office of the accused, he told that the accused has received the amount and kept the amount in the bag and pointed out the accused. The Lokayuktha police held both the hands of the accused and introduced themselves and prepared the solution and subjected the right hand of the accused for hand wash and the same turned to pink colour. When the left hand of the accused was subjected to hand wash, the same did not turn to pink colour. 17 The Lokayuktha police enquired about the amount and the accused took the amount of Rs.1,000/- from his bag and gave it to the police. The said notes number tallied. The bait money was seized and the mahazar was drawn. He identifies the material objects and also his signature on Ex.P.3. He was subjected to cross-examination.
19. In the cross-examination, a suggestion was made that on 20.02.2006, notice was sent to him that survey will be done at 11.00 a.m., and the said suggestion was denied. It is suggested that he refused to receive the notice, and the same was denied. It is suggested that the surveyor came and conducted the survey on 20.02.2006, and the same was denied. He admits that when the accused demanded the money when he visited the land, he did not give any complaint to the superior officers of the accused. He admits that on the said day, he did not go to the ADLR office. It is also elicited that he was not having any difficulty to go and give the complaint to the superior officers. It is suggested that the accused had conducted the survey properly, and the said suggestion was denied. It is elicited that after 23.02.2006, he has not received any survey notice. It is suggested that based on the survey conducted on 18 20.02.2006, the sketch, phodi and pahani was written, and the said suggestion was denied. It is suggested that on 20.02.2006 itself, the survey was conducted and no work was pending, and the same was denied. He admits that when he went to the ADLR office, other public were also there in the office. It is suggested that the accused never demanded any money and he gave the false complaint, and the said suggestion was denied. It is suggested that on 23.02.2006 when the accused was involved in his work, without his knowledge he kept the amount in his bag, and the said suggestion was denied. It is also suggested that he instructed the surveyor not to conduct the survey in respect of land of his brothers and the accused did not hear his instructions and hence due to the said ill will, he gave the false complaint, and the same was denied.
20. P.W.2 in his evidence says that he was called to the Lokayuktha office and he visited the Lokayuktha office at around 1.00 p.m. The Lokayuktha Inspector introduced the other panch witnesses and gave the complaint given by P.W.1 and he read the complaint. Thereafter, entrustment mahazar was conducted in the office of the Lokayuktha police and he kept the bait money in the pocket of P.W.1 and Ex.P.2 was drawn and he has signed 19 the same. P.Ws.1 and 3 went to the office of the accused and after five minutes, P.W.1 came and gave the signal and all of them went to the office of the accused. P.W.1 told that he gave the money and after receiving the amount, the accused kept the same in the bag. It is also his evidence that both the hands of the accused were subjected to hand wash and the right hand turned pink colour and the left hand did not. The solution was also seized and thereafter mahazar was drawn and he signed the trap mahazar. The accused also gave the reply. P.Ws.1 and 3 denied the contents of the reply mentioned in Ex.P.19. He was subjected to cross-examination.
21. In the cross-examination with regard to where he was standing, he says that he was standing at a distance of 300- 400 ft. and other staff were also there and not much public were there. He admits that the accused was subjected to hand wash. Ex.P.21 discloses that the bag was opened. It is suggested that no entrustment mahazar was conducted in the Lokayuktha office, and the same was denied. He also admits that the accused gave the complaint that he did not receive the amount from the complainant.
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22. P.W.3 is a shadow witness and his evidence is that he was called to the Lokayuktha office and the entrustment mahazar was drawn in his presence. Thereafter P.Ws.1 to 3 and 5 went to the office of the accused and he also says that the voice recorder was also given to the complainant. They visited the office of the accused at around 3.10 p.m. and the vehicle was parked at a distance of 50 ft. from the office of the accused. He himself and the complainant were sent to the office of the accused. The accused was sitting in the chair and the complainant went and met the accused and the accused replied that he was waiting for him and asked P.W.1 whether he has brought the money. P.W.1 gave the money which was kept in his pocket and the accused received the money in his right hand and kept the amount in his bag. When the accused enquired how much amount he paid, P.W.1 replied that it is Rs.1,000/-. The accused counted the said amount and thereafter he kept the amount in the bag. The accused told that he will come and survey the land on the next day. Both of them gave signal to the Lokayuktha police and the Lokayuktha police rushed to the office of the accused and subjected both the hands of the accused for 21 hand wash. The right hand turned to pink colour and the left hand did not. He was subjected to cross-examination.
23. In the cross-examination, a suggestion was made that no amount was seized in his presence, and the said suggestion was denied. He says that he was standing at a distance of 10 ft. from P.W.1 and P.W.1 was standing in front of the accused. It is suggested that he did not mention before the Lokayuktha police that the accused collected the amount and counted the amount and the witness admits that he may not have stated the same. It is suggested that in his presence no entrustment mahazar was conducted in terms of Ex.P.2 and he is falsely deposing that the contents of Exs.P.2 and 3 are marked, and the said suggestion was denied.
24. P.W.4 in his evidence says that after perusing the records, i.e., the complaint, entrustment mahazar, trap mahazar, FSL report, sketch and the statement of the witnesses, he accorded the sanction in terms of Ex.P.23. He was subjected to cross-examination. In the cross-examination, document Ex.D.1 was confronted to him and he admits the same that the same is certified copy of the sanction record. It is suggested 22 that while seeking the sanction order, they have sent the draft sanction order, and the said suggestion was denied. A suggestion was made that without applying his mind he gave the sanction, and the said suggestion was denied.
25. P.W.5 is the Investigating Officer, who received the complaint, registered the FIR, secured the panch witnesses, drew the entrustment mahazar and sent P.Ws.1 and 3 to the office of the accused. After getting the signal, he went and seized the bait money by conducting the formalities and he also says that when the right hand of the accused was subjected to hand wash, it turned to pink colour and the left hand did not. He was subjected to cross-examination.
26. In the cross-examination, he admits that along with the complainant, his brother, sister and mother had also given the application to the ADLR office. It is suggested that notice was given to all the family members and the witness says he is not aware of the same. He also admits that he did not verify the status of the application as to whether the survey was conducted or not when the complaint was given. It is suggested that he did not draw the entrustment mahazar in terms of Ex.P.2, and the 23 same was denied. It is also suggested that he has not recorded the statement of any of the witnesses and he prepared the statement for his convenience, and the same was denied. It is suggested that he has not conducted any formalities in terms of trap mahazar, and the same was denied. It is suggested that M.O.13 was kept through the complainant, and the said suggestion was denied. It is suggested that the accused never demanded any money from the complainant and also not received any amount from the complainant and colluding with the complainant, he filed the false charge-sheet, and the same was denied.
27. The defence also examined the witness D.W.1, who is the brother of the complainant and in his evidence he says that the family members have got partitioned the property. In order to divide the property they had given the application to survey the land. He admits that Ex.D.2 is the application given to the ADLR office and he also says that notice was given in terms of Ex.D.3. The accused came and surveyed the land. At the time of conducting the survey, he himself and his sister were 24 present and the complainant was not present. He was subjected to cross-examination.
28. In the cross-examination, he admits that the total extent of the land is 1 acre 39 guntas. He also admits that prior to surveying the land, they have not partitioned the property. It is suggested that the complainant gave the application prior to the their giving the application, and he says that he is not aware of the same.
29. Now, this Court has to consider the evidence of the prosecution witnesses as to whether the evidence of the prosecution witnesses is consistent or whether there are contradictions, as contended by the learned counsel for the accused.
30. The first contention of the learned counsel for the accused is that the voice recorder is suppressed by the prosecution and the same is fatal to the case of the prosecution. P.W.3 in his evidence says that tape recorder was given to the complainant and none of the witnesses speak with regard to what had happened to the voice recorder whether the same was 25 in order or any conversation was recorded in the tape recorder. Now, this Court has to examine whether the non-production of the voice recorder amounts fatal to the case of the prosecution. This Court also has to examine the other evidence available before the Court to substantiate the allegation made in the charge sheet. On perusal of the evidence of P.W.1, he says that when the accused came to the land on 20.02.2006, he did not survey the land properly and therefore, PW1 requested the accused to do the survey properly. At that time, the accused demanded an amount of Rs.1,000/- for surveying the land properly.
31. On perusal of the complaint, P.W.1 has stated that the accused had visited the land on 20.02.2006 and he did not properly survey the land and when he intervened, the accused demanded the amount of Rs.1,000/- and he asked him to come and pay the money on 23.02.2006. Hence, he went and lodged the complaint. The complaint is given on 23.02.2006 and not on the same day. P.W.1 in the cross-examination admits that there was no impediment for him to lodge the complaint on the same day. On perusal of the evidence of P.Ws.1 to 3, they were called to the office of the Lokayuktha and the entrustment mahazar 26 was drawn in the office of the Lokayuktha. Though disputed in the cross-examination of P.Ws.1 to 3 and 5 that no such entrustment mahazar was drawn in the office of Lokayuktha and this Court did not find any effective cross-examination with regard to the drawing of entrustment mahazar in terms of Ex.P.2. The only answer elicited from the mouth of P.W.1 insofar as recovery of the amount is concerned is that, the accused had received the amount by his right hand and not counted the amount and he kept the amount in the bag. But P.W.3, who is the shadow witness claims that after receiving the amount, the accused counted the amount and kept the amount in the bag. There is discrepancy with regard to counting of the amount. Now the question is whether the same is fatal to the case of the prosecution.
32. The defence in the cross-examination of P.W.3 suggested that whether he made statement before the Lokayuktha police that the accused counted the amount and not given such statement and witness replies that he may not have stated before the Lokayuktha police. The defence got elicited from the mouth of P.W.3 regarding counting of the money. No doubt, in the chief evidence he claims that the accused had 27 counted the money. On perusal of the FSL report and also the evidence of the prosecution witnesses, particularly P.Ws.1, 2 and 5 is that when the right hand of the accused was subjected to hand wash, it turned to pink colour and the left hand did not. The evidence of P.W.3 has to be eschewed in view of the explanation given by him during the course of cross-examination regarding counting of money and the said discrepancy is not material discrepancy. The FSL report is very clear that only the right hand turned to pink colour. Hence, it is clear that the accused did not count the money and instead of he kept the amount in the bag. The defence in the cross-examination of the prosecution witnesses is that without the knowledge of the accused, the complainant kept the amount in the bag of the accused. In the cross-examination nothing is elicited with regard to the defence. The earlier explanation of the accused is that without his knowledge, the amount was kept in his bag but no explanation with regard to right hand turning to pink colour. If he did not receive the amount and how the right hand solution turned into pink colour, there is no explanation.
33. The learned counsel appearing for the accused mainly contend that mere recovery of the money at the instance 28 of the accused is not enough to convict the accused. But, in the case on hand, not only the money was recovered from the bag of the accused and apart from that, FSL report is against him and also the evidence of P.Ws.1, 2, 3 and 5 is consistent with regard to demand and acceptance. P.W.3-shadow witness, categorically deposed before the Court that the accused demanded and received the money, but in the cross-examination of P.W.3, nothing is elicited or put any suggestion that the accused did not demand money from P.W.1. Except the discrepancy with regard to counting of the amount by the accused, nothing is elicited. The other defence of the accused is that survey has already been conducted. In order to substantiate the same, the defence examined D.W.1 and also got marked the documents Exs.D.1 to 3. The document-Ex.D.3 clearly discloses that the notice was given.
34. On perusal of the evidence and records, it is clear that the accused had visited the spot on 20.02.2006 and P.W.1 also does not dispute the same. It is his evidence that on 20.02.2006 when the accused visited the spot, he did not conduct the survey properly and when he requested to do survey properly, at that time the accused demanded an amount of 29 Rs.1,000/-. No doubt, D.W.1 says that he himself and his sister were present and P.W.1 was not present at the spot. In the cross-examination of P.W.1, nothing is suggested to P.W.1 that he was not present at the time of conducting survey and nothing is elicited in the cross-examination of P.W.1 with regard to the first demand and second demand. P.W.3-shadow witness says that he was at a distance of 10 feet from P.W.1 when the conversation was taking place and his evidence is clear with regard to demand and acceptance of money.
35. No doubt, the defence counsel relied upon several judgments and the principles laid down by the Apex Court. The Apex Court in the said judgments held that mere recovery of the bribe money is not enough to convict the accused, but the said principles are not applicable to the case on hand. The Apex Court comes to the conclusion that if the evidence of the prosecution witnesses are inconsistent and contradictory to each other, the Court cannot convict the accused based on the recovery of bribe money. But, in the case on hand, the evidence of P.Ws.1, 2, 3 and 5 are consistent with each other with regard to drawing of entrustment mahazar and the entrustment of bribe 30 money to P.W.1 through P.W.2 and the very same money was given to the accused and the same has been tallied after seizure of the money. Nothing is elicited in the cross-examination of P.Ws.1, 2, 3 and 5 with regard to recovery of the money, except discrepancy in counting the amount. The very contention that the accused was not having any pending work and there was no need to demand and accept the amount also cannot be accepted, for the reason that the evidence of P.Ws.1 and 3 is consistent with regard to second demand and with regard to the first demand it is specific that the accused had made demand to survey the land properly and hence, I am of the opinion that the Trial Court has not committed any error in appreciating the evidence available on record.
36. The very contention of the learned counsel for the accused that the discrepancy in the evidence of P.Ws.1 and 3 is fatal to the case of the prosecution, cannot be accepted and the said discrepancy is only a minor discrepancy, as contended by the learned counsel appearing for the Lokayuktha. With regard to non-production of the voice recorder also, the witnesses have not spoken anything about the conversation recorded in the 31 voice recorder. Only P.W.3 says that the voice recorder was entrusted to P.W.1. But, nothing is on record with regard to voice recorder is concerned and when there are ample material before the Court with regard to demand and acceptance, non- production of voice recorder does not amount to fatal to the case of the prosecution, as contended by the accused. The other contentions that the presumption cannot be invoked also cannot be accepted. In the case on hand, the evidence of P.Ws.1, 2, 3 and 5 is consistent and no contradictions. Apart from that the bait money is recovered from the bag of the accused and FSL report also corroborates the case of the prosecution and it is a case for invoking presumption and the said presumption is also not rebutted by the accused leading any cogent evidence. The accused also not made out any preponderance of probabilities. Hence, I do not find any perverse finding in order to acquit the accused and the Trial Court has given cogent reason with regard to prosecution evidence placed before the Trial Court. With regard to sentence is concerned, the Trial Court has imposed minimum sentence for a period of one year and fine of Rs.5,000/-. Hence, I do not find any reasons to reduce the minimum sentence awarded by the Trial Court.
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37. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE MD/TL