Karnataka High Court
Muralidhar vs The State Of Karnataka on 6 August, 2008
Author: V Jagannathan
Bench: V Jagannathan
.. . . . . . .. '
IN THE HIGH coum' OF %
CIRCUIT BENCH, GULBARGA,f{
Dated the em day armgezst «A
:BEFOR$f 3 %
THE HONBLE MR.JUSrI§:£»:: V.JACi;MB§A*I5i¥IAN'V:
CRIMINAL 12605
B BEN: &_
S/o
Aged abo;;t'57%y--<m-S, '
Occ: Retd.
. . V. .. Appcilant
j" %( 0, Advocate.)
A N z3:_ ' %
(T 353:. Anuradha Dcsai,Add1. 3.9.9. )
% .% Appeal filed under Sectzian 374(2) of
JL%'%k%tim j'.C3r.P.C. aghast the judgment dam: 19.5.2005
by the spz. Judge, Bijapur, in special case
'VH0. 19/1999, comzicfing the appellant-accused for
the ofi'e-noes punishable under Sections 7 and I3(1){d)
read with 13(2) of the P.C.Act and sentencmg him to
undergo 3.1. for six months and to pay a fame of
...Re/spondem: A
1%ammpiu"u:umw@:mmm-sLaggm
months.
This appeal coming on far, he-aring___ " K V'
court delivered the following : V
Juvégkgzk
The appellant' _hi:'z <A:<)VA1v:1viction
for the ofiencgs 7 and
I3(1)(d) I3(é) Prevention of
connnnmgq Aég i9$é £%hg Ag? fin snorn and the
the learned Special
J udge', ' A A simple ixnprisonmcnt
em¢mm§afimh%amw-mamdwmnd
«fine, to undergo simple imprisoxlmcnt fm"
A of six months.
2. case of the prosccuticsn in brief is to the
V 3 A that on 24.4.1997, thfl appellant herein, While
V' he was worlung' as the Deputy 'I'ahas11='dar in
Mamadapur Nada Kacheri, demandeé and accepted
illmal gratification of R3400/~ from the camplainant
in order to Show an efiicial favour 110 the complainant.
3. The complainanfls msc is that his A. 2
by narne Thayawa had given an appficatiény V'
appellant herein for mak1I1g'
resi;)ect of six acres of land
1/3 share is concerned.
complainant that he 'jjwpulti V ' . favom*
of Thayawa in '_ of six acres
of land tazdT%h¢ complainant
that, by the Assistant
had made the
app1icu'atiV::z:)n.V necessary Partition and
reigning 31¢' filed by 'I'hayaw'a., fiw
a(i'<:;is£*§d-a"ppelIaii§f"'£ivcemandec1 from the €:omplama' ' nt
%$5$-viijlegal g'ath°ication to do the «mom:
favs3ur,; "l.' 1iéi*efore, the complairmnt, being 110%: willing
ihe bribe amount of Rs.4~G(}/-, brought this
to the notice of the Lokayuktha.
V4. Thereaficr, P.W.8 Shamarm, Inspector cf
Lokayuktha Police, Bijapur, ham on the cosmplfint
lodged by P.W.I as pm' I3x.P--- 1, registered 3 case in
%
Crime No.4/199'? and thaeaiter, he
panchas P.Ws.2 and 3 and, after
the: entire procedure "
mahazar, the said police
necessary instructions :3; - .__ " ' -p émch* %
informed the comp1ammu _fi gp the
appellant and, if made by the
appellant, to pay the" - and give
signal so will be able to
to the instructions
wen': and met the accused-
appenaxitam of R3400/- aficzr the
_ the appellant The necefly
ascertain the accused having received
also conducted and the test turned
emf' xspositrive inasmuch as the hands of the
'A 'V V' » $}}E5L't311af1t, Whfifl dipped into the solution, t:.1rn&
' On completion of the invcstigatziml, charge»
V' Fshmt was submitted against the appellant for the
aforementioned ofienoes.
9*?
5
5. On plmding not guilty to the
prosecution led the evidence by
9 and the documents Exs.P-3 P- *
apart from M.Os.1 to '7 beirg
The currency notes are O, %
of the appellant, no did
not admit the % appmrmg
against him. was thm
the amoupt laws and,
as he; fell on the mos'.
But, ~-- prosecution version is
that the the bribe amount am kept
itez:%histab1é.%%4
trial' judge, aft;er= a the
e1éi::1;_en;j$:' imrd, came tn the wnclusion that the
had bmught ham"? 249; 59241» ';'i- H!€'%
A beyond ail reasonable doubt inamtmh as
V% wfiélfi evidence of P.Ws.1 to 3 had established the cam
V' against the appellant and the panchas also supporszcd
the afcmmentionw witncms. As far as the
E?"
6
sanction Gfdfi' is concerna, the learned
referred to the said aspect at
judwaexxt and held that no defcgfigcgn 'ii? " " 'V
sanction order Ex.P~--11 issuw if
an being satisfied with the; 'c-ie;ai*ly%
establishing the L the
learned trial judge for the
effences with the charged
and imprisonment
for to pay a fine of
Rs.5,iO()0*/ --». was aiso passed. It is
this jud§ra.¢r1tV (Sf and sentctwe passed that
V. it; this appeal by the accused.
the azguments addressed. by the
'x:-fiijixsel Shri K.Appa Rae for the appeflant
£1115 lmmed Gmzemment: Pleader Smt:.AmH'adha
A' for the Stats and perused the entire record of
case.
8. The Iwmw ceunsel for the appellmn mmmxded
that the evidence on Wm reveals that no matter
3%
was pending before the appellant for being
by him and, as mgards the mxtries
claim made by Thayawa are K V'
had been settled long back afzd
Ex.P-12. It was
relating to _ '
records had been cenapi;¢:.ec:%q:1i2$;%k:A2¢A;995 itself and,
therefore, to do
any favoug'-£o~ .' Referring
to ::g)?? vixomplahmant, it was
submitfied firmg the complaint, no
RTS no suit was also pending
%%%%%
"s§}§;§§'.1~~submjtted that the mmplainanit has
alsat that, as per the order dam
neemsary chanw in the records were
Thmefore, ):fi'e;r.ring to tha said aspect cf
..t!:ie evidence, the heamed counsel for the appellant
' argued that the quesfion of the appellant demanding
and accspting illegal gratification dome not arise as
35
that was no work to he done or any official favctftp
be shown by the appellant towards the A'
In this Imard, the learned counsel V' >
the evidence of the prosecutioiigj .1
particularly, to what is dep9sed"'?g;§"'hy V.
course of their V' A_ _
10. The second linznqcr the mekreamed
counse} for thg: order
Ex.P~--11 ca_Vni_ino . because, it is
clear: " _ produced by the
prose£:'m*.ionV .1 1, which is the sanction
ordgrf issiiefii' by '.'-P.\'SI».V"F, is a replim of Ex.P- 10 and
orders are dated 19.8.1999.
going through the contents of the
Ex.P~10, it can be said very well that
nETx.P"- is only a carbon copy of Ex.P-10 exoeptixg
'v'-. i3£)I'j'..A'i;11€ sigxalzum of the Divisional Commissiomw and
aufthcrity to Wham the sanction ordm' had been
addressed. Therefore, it is contanded that hack M
application of mind by the sanctianing anthwity
,5/>
sf
P.W.7 is very ciear from a comparison of
and P-11.
p.w.7, the Divisional commisséotigf, wamm %
competent autherity to 'wdriwier
because, it has & fir said
witness P.W.7 B.A.Ku't%ir;okk powers to
appoint Disciplinary
aliorve cadres and he
could hiét' to prosecute a
A' T it % is contended am the
appeuantL"fi'as tiie. of Tahasiidar when the
passed and, in View of the
by P.W.7, the sanction order mnnot
1rj_»EvaI;id in law. Therefore, refermm' to the
afsmsaid mwcts oencerning the sanction crda", the
A _ counsel submittw that once wzctaiuaz ordar
held ta be void ab mttéo, the qtmtion of film
appellant being convicted does not arise. '1'here:fore,
%
19
this appeal he allowed by setting aside the
conviction and sentence passed by the trial j ' : J
12. (311 the other hand, the '
Pleadcr for the Lakayuktha T
judgment of the ma!' court no V'
because, insofar as the of
the bribe amount the
evidence of thfi V 'p 1 to 3
coupled witti may cstablishm
the racn 33:a " ding and accepting
the the ma!' oour1:'s find' ixm
on f§.his_ asjuieciii termed as pexverse.
_ submitted by the lmrned $lt
. insofar as the sanction orda is
no ddfect man be fnund in the sanction
V V A 5.' amt! fififflil if some error or irregularity appws in
" sanction arder, hav1n' g mgam to subsmtma (3; of
Section 19 of the Act, the quwfion of revcrfing the
findingursmxtenmormtiermwedbytheswwl
Judge will not arise even if there is some error or
3?"
II
omission or irregularity in the sanction
under sub-motion (1) of Section 19
opinion of the court, a
occasioned to the accused.
14. The learned
to a dacision of by
Poiice Inspectm; Vs.
V..S'ejappa, AA ._.I<;T§i){)R 1433, to
contend the case of mi Vs.
v.K.kc":x¥1.L.J. 4593, has held
ma: 19 makes it exam that
evm; sordw was wanted by an
" V. - aLitIio1¥ity,'"wAhe 'not strictly mmpetcnt to accord
also time appellate as well as the
are deharned frm ixztmfming Wifil
cfinficfion and sarxtenoc merely on that fiund.
i;5'. H Another decisian rcfmred to by the kmmcd
WGoverr.1ment Plmar for the Lokayuktha is the em
reported in 2w3(2) Crims 283 and, in the said case,
}'
qt'
12
this court: has taken ttm View that
invalidity of sanction becomes
trial has ended in conviction. fI'11ereibr#'§,'_': itlwag = k
argued by the learned exgia %%:§é:a<ier%j%%fs§k%i;h¢g'
State that the View taken @§e.s:...tiot%
call for any intczferenpc as has
been properly triai judge
and, as such, 4t_:E1r.:_ " '
I6. ¢O11I".lSBlf0I' the
_ contenfions put
fozwaxfj for the appellant,
what. is to ssmx isflany intcrfemnce is called for
agm tbg jfidgiziiént of oonvmtzon. ' ' and sexatcrwe
V «V as the mat euntcntion urged by the
K counsel for the appellant is cosrmxicd, the
gmmuum has maxed p.w.1 Thupaflfl, P.w.2
hfiangayya, a shadow witngss, P.W.3 Ganapathi, a
parish witness, and P.W.8 S , the 1.0., and ali
these witnesses have supported the pmsaacnflon case.
E
has
18. It has come, in the evidence cf P.W.1 V.
that on 10.4.1997, he met the accused
of the order and the accused -if
is paid, he will not make the 'oi'
acres of land and the I'*".'.._3V4_'§"la the
said amount on 24. 1. to by
him that he went ofliw on
24.1 1. 1997 ; lodged his
complaint'. mahazar was
I to the ofiiec of the
was around 1.30 p.m. he
met; thcf: axid accused asked him as to
bmtlght the money and
1 gave Rs.4()O/- ta the accused and
nmiving the notw, oountsw ttm
by both his hands and kept them on the table.
P.W.1 five the signal and the Lokayuktha
-«aificials came: thfifi and the cmrmxcy mates were
Vseizadaxxdtllehandwashoftheaccusedttnnedinto
pink aalour. Thereafter, all of them went to
%
14
Mamadapura along with the accused and
open the lock of the omce and the aCCi:§§fldA
Produced the order copy as M $3.32. " 5; %
19. In the c:~oss*examina_t:on
has been quesfioned in .a"'s. _ "the
proceedings the
Witness has stated passed on
23. 12. 1995, staéééi in the course
of his étocused told him
that ah" :HgVi\v}Vcn by Thayavva and
others is making the paamion.
As as P.'W.1 with @111 to the
f ancepting the bribe amount
keeping it on the table is ,
thfizre is__no c7:14éss--exan1iI1atian of P.W. 1.
'P.'VW.2 Sangayya, Whi} was pat when the
' éiatrfistment mahmar was czonducted in the
HI'..okayuktha omee, has deposed in his evidence that
the accused demanded Rsmim/--» finm Turm (R91. 1)
and Tungal paid Rs.-400/--- to: him. This witness has
2"
15
also stated about the Lokayuktha Inspector
to the spot and seizing the currency
collecting the hand Wash qrgixe = k
preparing' the trap mahazar
speaks to the fact that tl1e 1}'at_1d 91' %
are at M.OS.3 and 4, and M,_(i:1..is'V§he notes
ofRs.100/- 'A
(2 1. In the a suytion
was put put the
naonej of the accused is
dflniflth' " At' time, the Witness has
volfisnamcma demanded the money
. - 'I . .... it.
is anothm' much witnam and
he g_ supported the pmtsecution case by
VA '~ " on the fines of WW3. I and 2 insofar as the
' wash of the aecusai being takm1 and it being' in
pink colour. As regards the demand and acceptance
ef the bribe amount is wncerned, this witrw has
staliw that he was told by P.W. 1 abaut the said act.
,%
16
The cmss~cxamination of this witness is once
focussed an the aspect of the mvenuclenniggi *
made earlier and an order being passed as
on 28.12.1995. .
23.
P.W.4 Bhaskar, P.W.5 7
Basappa have not suppoziecj .
However, P.W.8, the 1.0., efiidcnoc
about the to the
complainant and regard to
the the 1.0. hm
depostéd of the trap. It is in the
evidgencje (if whm they went: and raided
"" Mthc accused was present, the
P.W.8 about the dmand sf
ntic:x.%1ey___v accused and the same bemg received.
byfliéémuscd am the said ram: being warmed by
li".*'§.¥.'2. The 1.0. has also stated in his evidence that
% accused gave his explanation as pm' Ex.P- 14 and,
asregaItistI1cp%pe1-tai11iI1gtothecomplaina:1t
are concerrm, the accused took tha 1.0. and othas
.31
I?
to Mamadapura Nadakacheri and in the said
the presence of the accused, the lock was _
and as pm' the directions of the 1.0. "
produced the file pertaining to
complainant, and Ex.P-2 isflqe .
was produced and it the
panchanfl Ex.P~»5; of the
1.0., 01106 9833.11. as regards mg in me civil _. _ ._ the LO' has .. pfbduced any docmnents except concerning the act. of was not dhectly put. to that is brought. out finm the 1.0. is iiot remember what were the objects H V' .V on either side of the place when ' W " 'A was sitting in the chair and he rm also that that was not table in from of the T "°a"1T3p¢:-Ilazxt; and this is with refcmncc to the sketch map Ex.P---- 16. ;_ /:7 18
24. Thus, a close examination at' the widencxf:
material witnesses has established the ra& accused demanding and the 'A " 2 complainant. The defence 3:15 to be found in Ex.P- 14 wnciaem new ting currency notes were héxlgdsfimxd a call was given and pcrsons came and the accugsffi but ix fell an th¢_ 'set' the appellant that five the amount by force agam at him.
25. j. -- fined son moon! is accepted insofar the amount by the appellant the pmsecuticm has, therfiore, pfizazed made against the .
" far as the argummt of the imaged mussel ' AiA'é.§r't 11ae appellant that no matter was pending bcfare K u H 't.he appellant in View ofthe proceedings having ended by an order dated 28.12.1995 (Ex.P--12) and, therefore, the omsion for the appellant: to demand % I9 and accept the bribe amount does not CGl'1{)$I'l'lCd, I am unable to agree with contenficn put forward becaus§e,A»Vi1:_ we " " 'V evidence of P.W.l that, appeal by the Assistant ,% an applimtion was for maldng partition entries mad the a£:scused 'd§d of the Therefore, it of P.W.1 that the to approach him fer do1'ng'" »._nece$s*.sar*_ ;,{ "fa§#3'cur to the complainant in _ " at' 'appliggafion that was filed 15' Thayavva ' As suc11, the question of ttm appellant :;éL§~:ng"né*%sv¢;~k to do alter the disposal of the case by 131-e'F:s$ia$t.a}1t Commissioner cannot be acmptw. A 5'I'he trial court, in the course of its judmem, ....ré:fening to this aspect of the matter, has cfiearly V observed that the evidmxw on record only goes to show that there was no litigation pending but that % 29 does net mean that no matter was pending harem appellant. Therefore, the said observation of tb1_{§' ._ court is in conformity with the overall record. Coming to the vaiidity:of"tfit: "
no doubt, a perusal of Exs.P- no one in doubt as to thé one and the same T319 is with regard to the I they are addressed who had this, though it %/
9.x.,..;,, beAa#r that. t'.'hf:;---- order at Ex.P-11 does mt indicatc A mind by the sanctum' mg' V. Vvbe<V.:'2i11st:_,___t.he said order is a carbon copy of 721:
' ardcr Ex.P- I0,Athe evidence givmi by the * aut31ority i.e., P.W.7, mun at be 7_ ovcriodkeci.
P.W.7, in the com-se of his evidenoe, has fieposed that he was the Divisienal Commimianer (sf Belgaum finm 21.4.1999 till February 2002 and it is also deposed to that on 9.8.1999, he twat! 21 a letter from the Lokayuktha and, after said letter, P.W.7 secured the entire file _ going through the records, he was " > prime. facic case has been accused and, therefore, he th¢ mafia; Ex.P--11. The mason for ofidar as per Ex.P--11 is also deposimg to the effect that §>x.P-- had some errors to whom the and secondly, the of the order in Ex.P- I0.
Thcrefoz'é,«..'_Vth.eVVVV' 0f P.W.7 gives an go through the records before ' as per Ex.P--1I. He aiso smzs in t:§ekco:%1rse ' his evidmlce that he happened to be the Authority as Well as the Appoinfing VA *5.' insofar as the cadre of Shcristedar is éioncemw.
""29. The lwmed counsel for the Lokayuktha has also bmught: to my axtentzitm the notification of the fix mi' 23 Prevention of Corruption Act further reduces _..the: rigour of pmhibifion under Section 19(1) of t:t_i:e '_< and in cases minder the Prevention of conoeming a public Savant, sar1et;"%:ion~'_4is This view was taken by the a«. reported in AIR 2007* so éaA1; sam%; several decisions of Apex' of the judment in the referred to by the for the StaI.e--
Lokayukaha, iiéafld that no meat can be foi2 I3.d-- in
31.:,..,ApI11a$?'iz3 g"'VV.v'tl1A<'é-flaw laid down in the in the case on hand also, the does indkzate application cf mind bAy*-.__the;__ authority and, thera'ore, I am of the that the sanction orda Ex.P~1l cazmot be V."'-A§:0:':§é3't1*ue:d as mm or void ab pamcuxarzy % yd tn the expianatian ta sub-mfion (3) at' Section 19 of the Act wherein it has been clmifieci }/ tr"
24
that an error also includes competency 9:' authority to gent eanction.
32. It may also be connection that the learned down heavily on the 1'even11e'e:.V:é§*:3t}1oi.z'ii:ie;s:'wellel to defeat the very ixlveeizigeticéxi and, referring to the whida the suspension {of 1 ~ Vmcorded, the em that the said order was the investigation by continue. Therefore, the Qfisefiéflfidng me<de the by learned trial judge kl his judmem: is eomethmg' to be taken ;1e£e.1'ef by the revenue amherities. Tfiue, on a careful eonsideratizm cf the entire an record, in 'cm light ef the arguments Wadvanmd by the Learned counsel for the appellant and the ruling cited by the Imrned Gavemment Pleader fer the State, I am of the View that the S?' 'at.
mere 59 when this court had ccnfirmw the A A of the trial court. Hence, the prajrcr of the:
= counsel for the appellant is rejected. 25 judmant of comricticn and sentence passed _ trial court is just and proper requiring no at the hands 01' this court. ' 2 cannot be termed as perverse the trial court has committV¢:<:.V :_heldi;I1g that the appellant ig. the offences with which _
34. For the x appeal iacks merit and ' counsci for the of sentence.
:. ~ Govermnexrt Pleaxicr far the ex: thig In my view, as the appellant by the trial court far the omm um-"1cr .'£3([3.Act, it is not a tit case to suspend the The appellant is said to be on mi} and, therefore, I dfiect the Rial court to secure the y \s