Karnataka High Court
M S Dhananjaya vs The State Of Karnataka on 24 November, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.548/2010
BETWEEN:
M.S. DHANANJAYA
S/O M. SUBBAPPA GOWDA,
AGED ABOUT 57 YEARS,
OCC: SURVEY SUPERVISOR, KUNDAPURA, KUNDAPURA TALUK,
R/O N.G.O. COLONY, BAILOORU,
76 BADAGABETTU VILLAGE.
...APPELLANT
(BY SRI C.H. JADHAV, SENIOR COUNSEL FOR
SRI P. PRASANNA KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY LOKAYUKTA POLICE,
UDUPI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI VENKATESH S. ARBATTI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE RECORDED BY THE LEARNED S.J.
2
UDUPI IN SPL.CASE NO.25/2006, DATED 07.05.2010 THEREBY
CONVICTING THE ACCUSED/APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTION 7 AND 13(A) READ WITH 13 (2)
OF PREVENTION OF CORRUPTION ACT, 1988 AND SENTENCING
ACCUSED/APPELLANT TO SUFFER S.I. FOR A PERIOD OF 1 YEAR
AND TO PAY A FINE OF RS.2,000/- (RS. TWO THOUSND) FOR
EACH COUNT AND IN DEFAULT, TO UNDERGO S.I. FOR A
PERIOD OF ONE MONTH THE PUNISHMENT SHALL RUN
CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THROUGH VIDEO CONFERENCE THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant and also learned counsel appearing for the State-respondent.
2. This appeal is filed challenging the judgment and order of conviction and sentence dated 7.05.2010 passed in Spl.Case No.25/2006 on the file of the Sessions Judge, Udupi convicting the accused for the offence punishable under Section 7, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- for each count. 3
3. For the sake of convenience, the parties are referred to as they are referred to in the original suit before the Trial Court.
4. The factual matrix of the case is that the complainant gave an application to survey the land in respect of Sy.No.31/1, Mudoor Village, Kundapura Taluk since he was having 1.90 cents and he wanted to give a portion of the property in favour of his sister and gave an application on 21.05.2005 to ADLR, Kundapura for measuring the said property and also obtained the receipt it is also the case of the complainant that land was surveyed and they have not given sketch. When he had approached the accused he demanded an amount of Rs.500/- on 8.7.2005 and he was not interested to pay the amount hence he had approached Lokayukta Police on 12.07.2005 and thus the accused was trapped and recovery was made at the instance of this accused by conducting the mahazar.
5. After conducting investigation, Police have charged sheeted the accused and accused was secured before the Trial Court and he did not plead guilty and claimed trial. Hence the prosecution has examined P.Ws.1 to 8 and got marked Exs.P.1 4 to P15 and M.Os.1 to 11are also marked. The defense got marked Exs.D1 to D3 and did not choose to lead any oral defense evidence. Under Section 313 of Cr.P.C. accused statement was recorded and thereafter hearing both prosecution and also defense counsel, Trial Judge convicted the accused under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 of IPC and sentenced the accused. Hence, present appeal is filed before this Court.
6. Grounds urged in this appeal is that the impugned Judgment and Order of Conviction and Sentence passed by the Trial Court is erroneous and evidence and the evidence of P.Ws.1 to 4 is not consistent and contrary to each other. The learned counsel appearing for the accused vehemently contend that according to P.W.1 demand was made on 8.7.2005 and complaint was given on 12.07.2005. The complainant has not explained the delay in lodging the complaint and there is no material to substantiate the case of the prosecution that accused has demanded the amount. Though the prosecution relied upon evidence of P.Ws.1 to 8, the evidence of P.Ws.2 and 3 is not helpful to the prosecution. Trial Judge has considered the 5 evidence relying upon the evidence of P.Ws.1 and 4 so also the evidence of P.W.5. Evidence of P.Ws.1 and 4 is inconsistent and no corroboration and the counsel would also submit that no work was pending with the accused on the date of trapping and he had already signed the papers and hence offence under Sections 7 and 13(1)(d) cannot be invoked.
7. Further the counsel would also submit that P.W.1 though he says that accused has demanded and P.W.4 was sent along with him and he categorically says that he did not hear the words between P.W.1 and the accused and only he claim that witness handing over the amount and hence the demand has not been proved and acceptance of the amount also not proved. Since the accused has already signed the documents and same was not in his custody and no work was pending by him and hence question of making demand does not arise.
8. Witnesses who have been examined deposed before the Court with regard to the recovery and deposed that both hands were turned pink colour but it is not correct. Though it is the case of prosecution that tape recorder is sent along with the complainant and the same is not in order. The witnesses who 6 have been examined before the Court also not specific in which and accused had received the amount and Officials of the accused office are not examined. The witness who accompanies the complainant categorically admitted that he was not able to see the place in which the accused was sitting and there are contradictions in evidence of P.W.1 and 4. Evidence of P.W.1, 4 and 5 does not inspires the confidence of the Court. Hence Trial Judge committed and error in convicting the accused under Sections 7 and 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act.
9. The learned counsel in support of his argument also relied upon the judgment of the Apex Court reported in 2015 (16) SCC 350 in the case of KHALID AHMED VS STATE OF KARNATAKA and brought to my notice paragraph 17, 19 and 21 of the judgment and referring these paragraphs, contend that there is no corroboration. Further submit that the case in hand also the prosecution has failed to prove demand and acceptance and also evidence of shadow witness is not helpful to the prosecution. The counsel also relied upon judgment reported in 2011 (6) SCC 450 in the case of State of Kerala and Another Vs. 7 C.P. Rao and referring this judgment the counsel brought to my notice paragraph 7 and paragraph 8 to testimony to prove corroboration which requires mere recovery of tainted money is not sufficient to convict accused. There is no corroboration of testimony of complainant regarding demand of bribe by accused. The learned counsel also relied upon the judgment reported in 1979 (4) SCC 526 in the case of PANALAL DAMODAR RATHI VS. STATE OF MAHARASHTRA and brought to my notice paragraph 8 of the judgment so also paragraph 9 of the judgment with regard to demand of tainted money and acceptance of the same has not been corroborated. In the absence of corroboration of the testimony of the complainant regarding the demand for money cannot be accepted and hence in the case of hand when there is no corroboration, Trial Judge ought not to have convicted the accused.
10. Per contra, learned counsel appearing for the Lokayukta Police would contend that Ex.P.1 complaint in which specific averments are made on what date he gave the application and on what date the survey was conducted and also that the person who conducted the survey has informed him that 8 he has already given the record to this accused. It is also his allegation in the complaint that on 08.7.2005 he went to the office of the accused and the person was also there in the office and told that go and see and make payment of something to the accused and thereafter he went and met the accused and he demanded an amount of Rs.500/- from him and hence he went and lodged the complaint to the Lokayukta Police.
11. The learned counsel would submit that evidence of P.W.1 complainant that payment is made with regard to the demand and also with regard to the acceptance. Entrusted mahazar was conducted and P.W.5 supports the case of the Lokayukta Police and so also P.W.4 who is the shadow witness support the case of the prosecution and hence, there was no corroboration, cannot be accepted. The counsel also would submit that there was no delay and the delay was only on the part of the accused in not signing the papers and accused had demanded the amount on 8.7.2005 and he did not inform the same to any body but on 12.7.2005 only made-up his mind to lodge the complaint and he went to the office of Lokayukta and gave the complaint. Hence there was delay in lodging the 9 complaint. The counsel would submit that the trial Judge particularly considering the evidence of P.W.1, P.W.2, P.W.4 and P.W.5 rightly comes to the conclusion that there was a demand and acceptance and considering the material available on record had rightly convicted and sentenced the accused. Counsel also would submit that P.W.2 and 3 are the official witnesses of the accused department and P.W.3 turned hostile and from their evidence it emerges that the application was given for survey and P.W.3 went and conducted the survey and the document was not issued subsequent to conducting of the survey and hence it is clear that work was pending with the accused and hence this Court cannot find fault with the Trail Court in appreciating the evidence.
12. Having heard the arguments of learned counsel appearing for the appellant and also learned counsel appearing for the State and considering the grounds urged in the appeal and also perusing the material available on record that point that arise for the consideration of this Court are:- 10
"1. Whether the Trial court committed an error in convicting the accused for the offences punishable under Sections 7 and 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act ?
2. Whether it requires any interference of this Court ?
3. What order?
Re-Point No.1 and 2:
13. Having heard the respective submissions made by the both the learned counsel appearing for the parties and also on perusal of the material available on record and also on perusal of the grounds urged in the appeal, this Court has to re- appreciate the same whether the trial Court has committed an error in believing the evidence of P.Ws.1, 2, 4 and 5 particularly who are the star witnesses in support of the prosecution case. Hence, this Court would like to summarize evidence of the prosecution witnesses.
14. Before considering the evidence of P.Ws.1 to 8, this Court first would like to mention the contents contained in the complaint dated 12.07.2005 and in the complaint, the complainant has categorically mentioned that he has given the 11 application on 21.5.2005 and also went and requested the Tahasildar to survey the land and he comes to know that the survey work was entrusted to one Santhosh and he did not conduct any survey and the same was again entrusted to P.W.3 George. P.W.3 - George came to the spot and conducted survey on 17.06.2005 and also he prepared the sketch and also informed him that he gave the report to the Office and instructed him to collect the same from the supervisor. In terms of the said instruction, complainant went and enquired in the Office of the accused and made several visits but he could not get the documents. He also enquired with the Staff and they told him that to give fees to the Officer and he will sign the document. On 8.7.2005, he went and enquired and the supervisor demanded an amount of Rs.500/- and the supervisor also told that if he gives the money of Rs.500/- only he will sign the sketch and the complainant was not having the money and hence he went and gave the complaint to the Lokayukta Police on 12.07.2005 at 12:30 p.m. On the same day, the Lokayukta Police secured the witnesses from different Department and introduced those panch witnesses and conducted the entrustment mahazar after he handed over the amount of 12 Rs.500/- to Lokayukta Police, which contains the denomination of Rs.100/- (5 notes). While conducting the entrustment mahazar given the instructions to all of them and also seized the phenolphthalein powder and the solution used for demonstration. Thereafter, the amount which he has given was smeared with phenolphthalein powder and thereafter the amount was given to him. P.W.4 was instructed to accompany him and observe the activities, which were to be taken place in the office of the accused. He also identifies the signature on entrustment mahazar-Ex.P2 as Ex.P2(a). On the same day at around 4 to 4:10 p.m, they have visited the office of the accused and found the accused was sitting on the table and other officials of the Department were also working in the very same hall, he went and sat in front of the accused and accused demanded the money and he took out the money which was kept in his shirt packet and handed over the same. The accused collected the said smeared notes and kept the same in his right side pant pocket. The accused also called P.W.2 and instructed him to get his signature and hand over the same. He gave the signal and P.W.4 was standing at the distance of 10 feet and he was observing the same. He informed the Investigating Officer what 13 had taken place in the office of the accused. Thereafter, immediately the Investigating Officer came and subjected the accused both hands for wash. On washing of the right hand, it turns to pink colour and the left hand was also subjected to wash, the same did not turn to pink colour. The Investigating Officer also enquired the accused, where he kept the money and the accused took out the money from right side pant pocket and handed over the same. He says that an explanation was sought from the accused and he gave the reply in terms of Ex.P6 and he also identifies his signature. The pant also seized and mahazar was drawn. He also says that though the Lokayukta Police have given the Tape-recorder and the same was not in order and no conversation was recorded in the Tape-recorder. The police have also seized the records from the office of the accused. The reply given by the accused was far from the truth. He also identifies his signature on Ex.P7 as Ex.P7(a). This witness was subjected to cross-examination. In the cross-examination, he admits that he was having acquaintance with PWs.2 and 3. He also admits that he gave seven applications to survey and no reply was received. P.W.3 was sent to conduct the survey. Accordingly, he came and conducted the survey. He cannot tell 14 the dates on which he gave the earlier application for survey. On 17.06.2005, when he met P.W.3, he told that after the survey, he prepared the sketch and given the same to the accused. On that day, he went and met the accused, he told him to come in the afternoon. When he went and again met him he told him to come on the next day. He did not go and complain the same to the Tahasildar. It is elicited that on 8.7.2005 at around 10:30 or 10:45 a.m, he has visited the office of the accused. Thereafter, he met P.W.2 - Thippesha and P.W.3 - George. Both of them told that if he gives something to the Officer and then he would get the sketch. The general public, who are in the office, also reiterated the same. On 12.7.2005, itself for the first time he visited the Lokayukta office and he cannot tell what time he demanded an amount of Rs.500/- and he did not inform the same to anybody else except giving the complaint to the Lokayukta Police. He went to Lokayukta Police Station at around 12:30 p.m, and he explained everything to Lokayukta Inspector i.e., the contents of the complaint. On 12.7.2005, itself he gets up early in the morning and prepared the complaint and he did not disclose the same even to his family members. The Lokayukta S.P. came to the office of the accused on 12.07.2005 15 at around 8:15 p.m. He admits that when the accused demanded an amount of Rs.500/-, he was aware that he can give a complaint to Lokayukta Police. But he says that on that date, he was having Rs.600/- and out of Rs.600/- he was in need of Rs.100/- for bus fare. He also admits that when he went to the office of the accused more people are gathered and he was not having any acquaintance with the said public. He also reiterates that the accused had collected the money by sitting posture and he kept the amount in his right side pant pocket. It is suggested that after giving the complaint to Lokayukta Police, the Police have visited the office of the accused and the same was denied. It is suggested that he has not given any amount to the accused and the said suggestion was denied. It is also suggested that no formalities was done as deposed in the chief evidence and the same was denied. He admits that except on 12.7.2005 and 13.7.2005, he did not visit the office of Lokayukta. It is suggested that MO.7-pant was not seized from the accused and the same was denied. He admits that when the police came inside the office of the accused, the file was with P.W.2. It is suggested that on 12.07.2005 in the early morning itself, Ex.P5-file (13 pages) was handed over to the accused and 16 the accused immediately signed and handed over the same and the same was denied.
15. P.W.2, is the official of the Survey Department and he also says that an application was given to survey, the land of the complainant. The work was entrusted to one Santhosh and he did not conduct the survey. Hence, the work was entrusted to P.W.3. P.W.3 had prepared the sketch and in order to handover the said sketch, it requires the signature of the accused. He also says that the complainant had visited the office twice and enquired about the sketch and the same was not given to him since the accused had not signed the said sketch. It is also his evidence that when the complainant came and enquired about the sketch he told him to go and enquire with the accused and accordingly the complainant went and met the accused and accused gave instructions for him to bring the record. Thereafter, he has signed the said sketch and he took the file to his table. In the meantime, the police came and seized the records. He identifies his signature available on Ex.P5. This witness was subjected to cross-examination. He admits that his office will be busy and also he admits that the distance between 17 his place and the accused is around 10 feet. He also admits that he cannot tell at what time the Surveyor has given Ex.P5 and he cannot tell how many records have been signed by the accused. It is suggested that the sketch was signed by the accused in the early morning and the same was denied, but he claims that he was signed in the afternoon. He cannot tell the exact time. He admits that P.W.3 gave the records on 11.7.2005. Till 11.7.2005, there was no work on the part of the accused and again he denies that the accused had signed the same in the early morning but he claims that the accused told him that he has signed the document in the afternoon.
16. The P.W.3, who conducted the survey in respect of the land of the complainant also reiterates that an application was given and after conducting the survey he handed over the file to the office i.e., on 11.7.2005. Ex.P5 was in his custody till 11.7.2005. He was treated as hostile and subjected to cross- examination. He admits in the cross-examination that the Supervisor has to sign the document after preparing the sketch and thereafter the same would be handed over to the owners of the land. It is suggested that on 15.6.2005 itself, he conducted 18 the survey and handed over the papers to this accused and the same was denied. It is also suggested that he only advised the complainant to collect the same from the accused and the same was denied. It is suggested that the accused is his superior officer and hence, he falsely deposed before the Court. The defense counsel also in the cross-examination itself elicited that prior to 11.7.2005, the complainant came and enquired him by the time he told that the survey was not conducted and he never met him thereafter.
17. P.W.4 is the shadow witness. In his evidence, he says that Lokayukta Police called him to the office in between 12 and 1 p.m. One more witness Suresh Rao was also present and the complainant was also present. The Lokayukta Police introduced both of them. The Lokayukta Police told him that the Supervisor i.e., accused had demanded Rs.500/- from the complainant. Hence, complainant has given the complaint. P.W.4 also in his evidence says that the complainant gave the amount of Rs.500/- to Lokayukta Police to give the same to the accused and conducted the entrustment mahazar and Phenolphthalein powder was applied to the said notes and also given instructions 19 for him to accompany the complainant and to watch the activities of the accused as well as the complainant. He also identifies the signature on the entrustment mahazar, which is marked as Ex.P2(b). It is also his evidence that he himself and P.W.1 went to the office of the accused and in front of the accused, the complainant went and sat and he was watching the same at the distance of 10 feet standing near the door. The complainant enquired about the accused about his work and he did not hear what had been conversated between them but the complainant took out the money from his shirt pocket and gave the same to the accused. The accused had received the same from his hand and kept the same in his right side pant pocket. Thereafter, the complainant came and gave the signal. Thereafter, Lokayukta Police have conducted the mahazar and the amount was recovered at the instance of the accused and both the hands of the accused was subjected to hand wash and the right hand of the accused was turned to pink colour and the left hand was also turned to pink colour. The accused took out the money from his pant pocket and produced the same and the said money tallies with the amount, which was handed over to the complainant after conducting the entrustment mahazar and 20 the said notes were also seized. The pant of the accused was also seized and sealed and he identifies his signature in Ex.P7. Tape-recorder was seized and the same was not in order.
18. P.W.4 was subjected to cross-examination. In the cross-examination, a suggestion was made that on 13.07.2005, this incident was published in 'Udaya Vani' Newspaper regarding corruption, the same was confronted to the witness with subject to objection, the same was marked as Ex.D1. The other document was also confronted and the same was marked as Ex.D2. He also admits that the reporter of the paper came and took the photographs. He admits that in Exs.D1 and D2- photographs, Ashok, a Police Officer, he himself, accused and complainant are there in the said photographs. He also admits that the Lokayukta S.P. has also visited the office of the accused. After completion of formalities, the Mahazar was drawn and it took about 1 hour and 15 minutes. He also admits that when he went to the office of the accused he was sitting in the bench in which the public were also sitting. It is suggested that the people, who are sitting in front of the accused are not visible from the bench in which the public are sitting and witness says 21 that partially the same is visible. He says in front of the accused, no other persons were sitting and this complainant went and sat in front of him. It is suggested that he cannot tell what had been conversated between the accused and the complainant and the said suggestion was denied. He says the accused went and enquired about the sketch and also noticed the complainant gave the money to the accused and also he gave the signal. He says the distance between the accused and the place in which he was sitting was about 10 feet and he did not observe how many people were sitting behind the accused. The accused took the money and kept the same in his right side front portion of the pant pocket. The Police have seized the pant of the accused, the same was around 5:45 p.m. The Police have also seized the attendance register, also the records of the complainant and no document was seized from the table of the accused.
19. P.W.5 is another Panch Witness, who is the entrustment mahazar witness. He says that he went to the office of Lokayukta at around 1 p.m. Lokayukta Police gave the information regarding complaint given by the complainant regarding demand of money of Rs.500/- from the complainant. 22 P.W.5 also reiterates the evidence of P.W.4 and identifies his signature on Ex.P2. Thereafter, they went to the office of the accused. P.W.4 accompanied the complainant and the Lokayukta Police and himself were watching at the distance of 100 to 150 meters at around 4:35 p.m, they went inside the office of the accused and he found the complainant and P.W.4 near the door of the office of the accused and Lokayukta Police enquired with the complainant about the demand and receipt of the amount. Thereafter, they have conducted the Mahazar and he says that the right hand of the accused was turned to pink colour when the same was subjected to hand wash. The Lokayukta Police also recovered the amount from the accused and the accused removed the said amount from the pant pocket and handed over the same, the same was also seized and Mahazar was drawn in terms of MO.7. He was subjected to cross-examination. In the cross-examination, he admits that he is a Gazetted Officer and he went to Lokayukta Office at around 12:45 p.m. He found the SP of Lokayukta at around 6:45 to 7:00 p.m, he has signed the three documents in the office of Lokayukta at the time of drawing entrustment mahazar. He admits that he cannot tell on whose instructions the Mahazar was prepared. He says the 23 same may be prepared on the instructions of the Inspector. He admits that P.W.1 has not prepared the complaint in his presence. He admits that he cannot tell before his visit what they have collected from the accused and also he cannot tell how long the accused was in the custody of Lokayukta Police. He cannot tell except the recovery of the amount from the pocket of the accused. But he claims that when he visited the office of the accused, PWs.4 and 1 were standing near the door of the office of the accused.
20. P.W.6 is the Police Inspector, who received the complaint from the complainant in terms of Ex.P1. He identifies his signature and also he says he has sent the FIR to the Special Judge and identifies the FIR as Ex.P13. The accused was working as Survey Supervisor and an allegation was made against him that he demanded an amount of Rs.500/- from the complainant. Thereafter, he secured the panch witnesses at around 1 p.m. and he did the formalities of entrustment mahazar after collecting the amount from the complainant. P.W.6 also reiterates the evidence in the line of PWs.4 and 5 regarding entrustment mahazar in terms of Ex.P2. He says at around 3:15 24 p.m, he left the office along with panch witnesses and reached the office of the accused and he gave the instructions to P.W.4 to accompany P.W.1 and P.W.5 was also along with him. Thereafter, at around 4:35 p.m, they have received the signal and thereafter they went inside the office of the accused and introduced himself as Lokayukta Inspector. Thereafter, he conducted the formalities subjecting the accused hands for hand wash and seized the solution, which turns into pink colour. Thereafter, he recovered the money from the accused and the Mahazar was drawn to this effect and the articles are seized with seal. He also says that he conducted the further investigation and thereafter filed the charge sheet. He was subjected to cross-examination. He admits that surrounding to his office, there are several gazetted officers and there was no special reason to secure these two panch witnesses from different office. It is suggested that entrustment mahazar and the seizure mahazar was drawn after visiting the office of the accused and the same was denied. It is also suggested that both the mahazars were drawn in the police office and the same was also denied. It is elicited that the amount was recovered from the accused in the front pocket, which was kept in the rear portion of 25 the belt and the accused has secured the alternative pant from his staff.
21. P.W.7, who gave the sanction on 9.8.2006, having perused the report, which he has received. He also identifies his signature available at Ex.P15(a). It is suggested that he has not given the sanction after satisfied with the report of Lokayukta Police and the said suggestion was denied.
22. P.W.8, who conducted the further investigation and he says he collected the sanctioned order and thereafter he filed the charge sheet.
23. The prosecution relied upon the official witnesses of the accused office i.e., PWs.2 and 3. P.W.2, in his evidence, he says that the complainant visited the office of the accused and enquired with regard to the sketch twice and the same was not signed by the accused. Hence, the sketch was not delivered to him. He also says that when the complainant visited the office he only told to enquire with the accused and P.W.2 supported the case of the prosecution. The evidence of P.W.1 is also in the light of the averments made in the complaint and in his evidence 26 he categorically says that when he met the accused he demanded an amount of Rs.500/- from him.
24. P.W.1 in the cross-examination, he categorically says that on 8.7.2005, he went and enquired the accused and he demanded the money. On perusal of the complaint-Ex.P1, it is specifically mentioned that on 8.7.2005, he went and enquired the accused. The very contention of the accused counsel is that there was no demand on the part of the accused, cannot be accepted. No doubt, P.W.1 says that before meeting the accused, he also went and enquired with PWs.2 and 3 and thereafter he went and met the accused and the accused demanded the money of Rs.500/-. No doubt, the complainant has not given the complaint on the same day and instead of he gave the complaint on 12.7.2005. But, P.W.1 in his cross- examination, he says that he did not disclose the same to anybody and also he categorically says even he did not disclose the same to his family members when he gave the complaint to the Lokayukta Police. It is rightly pointed out by the learned counsel appearing for the accused that, P.W.4, who has been examined before the Court also, admitted that he did not hear 27 the conversation between the accused and the complainant. But, he categorically says that he went and sat in front of the accused and he witnessed the complainant-P.W.1 took out the money from his shirt pocket and gave the same to the accused and the accused receiving the said amount by his right hand, kept the same in the pant pocket. No doubt, P.W.4 says that when the hands of the accused were subjected to wash, it turns to pink colour, both in respect of right hand and left hand. However, P.W.1 says that only the right hand when it was subjected to hand wash it turns to pink colour and left hand, it was not turned to pink colour. There is a discrepancy with regard to turning pink colour in respect of both the hands. Hence, this Court has to rely upon the document Ex.P14, the FSL report and the same discloses that the left hand solution was negative and not positive. Hence, this Court has to consider the document - Ex.P14 with regard to the discrepancy found in the evidence of PWs.1 and 4. The evidence of PWs.1 and 4 is consistent to each other with regard to handing over the amount to the accused. It is also important to note that immediately after the seizure of the money, the accused was enquired and he gave the reply in terms of Ex.P6. In Ex.P6, the accused has not 28 whispered anything about the bait money, which was seized from the accused and the same is silent. It is also important to note that the witnesses, who have been examined before the Court as P.Ws.1, 4 and 5 consistently deposed that the accused had received the amount and kept the amount in his right pant pocket and the amount was recovered in their presence and the pant also seized and the FSL report also confirm the same. There is no explanation on the part of the accused with regard to the recovery of bait money from his pocket. Both PWs.1 and 4 have categorically deposed that the amount, which was seized at the instance of the accused and the very contention of the accused counsel, is that there is no corroboration with regard to the demand and acceptance cannot be accepted.
25. No doubt, the principles laid down in the judgment referred to supra by the accused counsel, it is clear that if no corroboration than the benefit of doubt goes in favour of the accused. In the case on hand, the accused has not stepped into the witness box and not offered any explanation with regard to the amount, which was recovered from him and also in his 313 statement, he has not given any explanation. It is not the case 29 of the accused also that the amount was thrust to the pocket of the accused by the Investigating Officer and no defense at all regarding the money was recovered from him that too from his pant pocket. When the FSL report was against him that the pant pocket when it was subjected to wash, it turns to pink colour and when his right hand was subjected to wash, it also turns to pink colour. There is no explanation on the part of the accused. In order to accept the case of the accused also it is only a total denial and regarding recovery also nothing is elicited from the witnesses-P.Ws.1, 4 and also P.W.5. Having taken note of the material available on record, the very contention is that there is no corroboration on the part of the prosecution witnesses, cannot be accepted. Except the discrepancy of turning both hands as pink colour from the mouth of P.W.4.
26. The other contention of the accused counsel is that there was a delay in lodging the complaint. No doubt, the accused demanded the amount on 8.7.2005 and a complaint was given on 12.7.2005. P.W.1 categorically says that he did not inform the same to anybody but on 12.7.2005, only he went to the office of Lokayukta and gave the complaint. When such 30 being the case, the very contention is that there was a delay on the part of the complainant in lodging the complaint also cannot be accepted.
27. The very contention is that there are contradictions in the evidence of PWs.1 and 4 regarding demand. No doubt P.W.4 has not spoken anything about demand and he categorically says that he was not able to hear the conversation. He was at the distance of 10 feet and standing near the door. But, P.W.1 both in complaint and also in the evidence reiterates the same and nothing is elicited to dis-believe the evidence of P.W.1. Even though, P.W.4 does not say anything about the demand, he categorically deposes the amount was paid to the accused and the same was collected by the accused and kept the same in the pant pocket. In the cross-examination of Investigating Officer also nothing is elicited that the Investigating Officer was having any ill will against the accused to falsely implicate him in a case.
28. The other contention is that there was no work pending with the accused. P.W.2, who is the official of the very same department has been examined. He categorically says 31 that the complainant came and enquired him and he also deposed that he only told the complainant to go and enquire with the accused and also it is important to note that it is suggested that the accused had signed the said document in the early morning itself. P.W.2 categorically denied in the cross- examination that he has signed the document in the early morning itself, but he categorically says the same was signed in the afternoon, but he cannot tell the exact date. Hence, the very contention that he had already signed and handed over the same to P.W.2 also cannot be accepted. In the cross-examination of P.W.2 also, nothing elicited that he was having any ill will against the accused to depose against him. When such being the case, the very contention of the accused that he has not demanded the money and there was no pending work with him cannot be accepted.
29. It is also important to note that the complainant in the complaint had categorically stated that he gave the application in the month of May and though the work was entrusted to one Santhosh, he did not conduct the survey. But P.W.3 went and conducted the survey in the month of June itself 32 and the complaint-Ex.P1 is specific that P.W.3 told him that after conducting the survey, he has handed over the papers to the accused. No doubt, P.W.3 turned hostile and he was cross- examined and he claims that the records were given on 11.7.2005 to the accused. No material is placed before the Court that the records were handed over on 11.7.2005 itself. In the cross-examination, it is categorically suggested that the accused is superior to him and hence, he is deposing falsely before the Court. When P.W.3 turned as hostile and his evidence is that the records were given to the accused only on 11.7.2005 cannot be accepted. If really the records are given on 11.7.2005 to the accused, what was the need of the complainant coming and enquiring in the office of the accused both PWs.2 and 3 about the sketch. Prior to that, it is clear that the accused had not signed the said document and he demanded the money. Thereafter, he has accepted the money from the complainant and then signed. There is no explanation on the part of the accused also for having received the money and when the FSL report also goes against him, the very contention is that the evidence of shadow witness is not helpful to the case of the prosecution cannot be accepted. No doubt, in a criminal case, 33 the Court also cannot be expected of mathematical niceties and the Court has to look into the evidence whether it inspires the confidence of the Court and it is settled law that the prosecution has to prove the case beyond reasonable doubt and the accused has not made out any pre-ponderance of probability to extend the benefit in favour of the accused by leading evidence or effectively cross-examining the prosecution witnesses, particularly, P.Ws.1, 2, 4, 5 and 6. Hence, I do not find any error committed by the Trial Court in appreciating the evidence of prosecution witnesses. In order to come to other conclusion, this court has to find the perversity in appreciating the evidence and not appreciating the material available on record and the trial Judge considered the evidence of PWs.1, 2, 4, 5 and the Investigating Officer, who conducted the raid and all the material is in favour of the prosecution and nothing in the cross- examination is elicited to extend the benefit in favour of the accused. Hence, I do not find any reasons to reverse the findings of the Trial Court and there is no merit in the appeal. 34
30. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE HR/cp*