Karnataka High Court
K K Sangamesh vs State By Lokayukta Police on 20 June, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.506 OF 2011
BETWEEN:
K K SANGAMESH
VILLAGE ACCOUNTANT
HUSKUR VILLAGE CIRCLE,
ANEKAL TALUK,
BANGALORE RURAL DISTRICT
BANGALORE
R/AT KOTE BEEDI,
ATTIBELE VILLAGE,
ANEKAL TALUK,
BANGALORE DISTRICT
BANGALORE
... APPELLANT
(BY SRI MURTHY D. NAIK, ADVOCATE
FOR SRI MAHENDRA G., ADVOCATE)
AND:
STATE BY LOKAYUKTA POLICE
REP BY STANDING COUNSEL AND
SPL PUBLIC PROSECUTOR FOR KLA CASES IN
THE HON'BLE HIGH COURT OF KARNATAKA
BANGALORE
... RESPONDENT
(BY SRI B.S. PRASAD, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE CONVICTION
SENTENCE DATED 28.4.2011 PASSED IN SPL. CASE
NO.90/2006 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE -
2
CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988
AND THE APPELLANT/ACCUSED IS UNDERGO R.I. FOR A
PERIOD OF TWO (2) YEARS AND ALSO TO PAY A FINE OF
RS.10,000/- (TEN THOUSANDS) AND IN DEFAULT TO PAY THE
SAME TO FURTHER UNRDERGO SIX MONTHS OF R.I., FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ
WITH SECTION 13(2)OF PREVENTION OF CORRUPTION ACT,
1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 1.6.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 374(2) of Cr.P.C for setting aside the judgment of conviction and sentence passed by the Special Judge Bangalore Rural District in Spl.C.No.90/2006 for having found guilty and convicted for the offence punishable under Sections 7, 13 (1)(d) read with 13 (2) of Prevention of Corruption Act (herein after referred as PC Act).
2. Heard the arguments of learned counsel for appellant and special counsel for respondent.
3. For the sake of convenience the ranks of the parties before the trial court is retained. 3
4. The case of the prosecution is that the Lokayuktha police filed charge sheet against accused for the above said offences on the complaint filed by one PW3/Maddurappa as per Ex.P7 wherein he has alleged the accused was Village Accountant working at Huskur village and the complainant approached him for change of Khatha in respect of land bearing Sy.No.117 of Gulimangala village from his father name to his name. Whereas the accused has demanded Rs.7000/- as bribe amount for doing the work and the complainant was not willing to pay the bribe amount, hence he lodged complaint to the Lokayuktha police. In turn the Lokayuktha police registered a case in Crime No.1/2006 for the above said offence and a trap was prepared the amount of Rs.5000/- sent through the PW3 and PW1 sent as shadow witness on 3.1.2006 when the accused accepted the cash he was caught red handed and the same was seized by the police under the panchanama as per Ex.P2 and accused was arrested he was produced before the Court and after completion of investigation 4 charge sheet came to be filed. The accused pleaded not guilty, when the charges were framed and claimed to be tried. Accordingly, to prove the case, the prosecution examined 6 witnesses and got marked 16 documents and 8 material objects. After closing of evidence the statement of accused under Section 313 of Cr.P.C was recorded. The case of the accused is one of the total denial and he has marked D1 to D3 in the cross examination but not entered to the witness box. After hearing arguments the trial court found guilty and convicted and sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.10,000/- in default he shall further undergo 6 months imprisonment vide order dated 28.4.2011.
5. Being aggrieved by the judgment of conviction and sentence passed by the trial court the appellant preferred this appeal.
6. The learned counsel for the appellant has contended the judgment of conviction and sentence passed 5 by the trial court is liable to be set aside as the appellant is only a Village Accountant. He has no authority to issue Khata, there is inconsistency in respect of evidence of PW1 and PW3. PW3/complainant totally turned hostile and not supported the prosecution case. The trial court convicted the appellant only on the basis of PW1, shadow witness. He has stated that he did not ascertain the contention of the complainant filed by the PW3 and he was away from PW3 and statement of eye witnesses were not recorded by the investigating officer. He further contended that the PW2 panch witness says the amount was received by PW1 but not the accused. The sanction authority has issued the sanction without proper application of the mind. The sketch prepared by PW5 reveals and contradicts with evidence of PW1. Hence prayed for allowing the appeal.
7. Learned counsel further contended that as on date of filing complaint on 3.1.2006 there is no official work pending with the appellant and even otherwise the complainant was not the applicant and his brother was 6 applicant. His brother was not examined by the prosecution. Therefore, the evidence is insufficient to prove the guilt of the accused. The learned counsel further contended there is an error in framing of charge as the specific offence shall be mentioned in the charge as required under Section 211 (4) of Cr.P.C Section 13 of PC Act alone mentioned in the charge which is only a punishment column, but there was no clarity in the offence committed by the accused hence prayed for allowing the appeal.
8. Per contra, learned Special Counsel for respondent has supported the judgment of the trial Court and contended that the prosecution is successful in proving the case where the accused has accepted the bribe amount after demand. He contended that the accused is the person who sends report to the Revenue Inspector and he demanded bribe and while receiving the same, he has been trapped. Even though P.W.3-the complainant has turned hostile, but the shadow witness P.W.1 and panch 7 witnesses and the investigation officer who received the complaint, have categorically stated about the demand and acceptance of the bribe by the accused and they have supported the case of prosecution. Even though P.W.3 has turned hostile, the prosecution is successful in proving the guilt of accused by adducing the circumstantial evidence. The learned Special Counsel has also contended that the appellant has not disputed the sanction granted and the sanctioning authority, by application of mind, has accorded the sanction. Therefore, it is argued that the contention of the appellant shall not be accepted. The learned Special Counsel further contended that in respect of charge, Section 13 of PC Act, the same is curable under section 465 of PC Act. Merely, non mentioning of the Sub- section is not a ground to set aside the order and the same will be only an irregularity and that can be cured by Section 464 of Cr.P.C. He further contended that in respect of receiving the amount by the accused as per the evidence of P.W.2, that is only an error and that has 8 clarified in the evidence of P.W.2 and Ex.P.C1 has been marked. In support of his case, the learned Special Counsel has relied upon the judgment of the Hon'ble Supreme Court in case of NEERAJ DUTTA Vs. STATE (GOVT. OF N.C.T. OF DELHI) reported in 2022 SCC OnLine SC 1724 and therefore, prayed for dismissing the appeal.
9. Having heard the arguments and on perusal of the records, the points that arise for my consideration are:
"1) Whether the prosecution proves beyond reasonable doubt that the accused being Village Accountant demanded Rs.10,000/- as bribe and received Rs.5,000/- as advance from PW.3 in his house on 03.01.2006, thereby, he has committed offence punishable under Section 7 of the P.C. Act?
2) Whether the prosecution further proves that the accused misused the official position, demanded and accepted the 9 bribe for doing official favour, thereby, committed the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act?
3) Whether the judgment of the trial Court call for interference?"
10. The prosecution examined 6 witnesses as per PWs.1 to 6 and got marked 16 documents as per Exs.P.1 to 16 and 8 M.Os.
11. PW.3 is the complainant who has filed a complaint to the Police regarding demand of bribe by the accused for transferring the Khata and he has filed a complaint as per Ex.P.7. But this witness turned hostile, not supported the prosecution case, that, after treating him as hostile and cross-examined by the Special Public Prosecutor, he has denied the demand made by the accused and also filing the complaint to the Police producing Rs.5,000/- to the police and the same was handed over to the accused where the police caught the 10 accused red handed and totally he has turned hostile. In the cross-examination by the learned counsel for the accused, he has produced Ex.D.1 stating that his brother Andappa has given application for change of Khata and he do not know that the khata was changed on 29.12.2005 as per Ex.D.2 and he has denied that the he has seen MOs.2 to 7. Therefore, the evidence of PW.1 who is the complainant set the law into motion and handed over the bribe to the accused was totally turned hostile.
12. PW.1 who is a shadow witness has supported the prosecution case, he has spoken about the police summoning to the Police station introduced the complainant and the complainant filed the complaint to the police against the accused for demanding bribe for changing khata. He further speaks that the complainant produced Rs.5,000/-, the police smeared the phenolphthalein powder and making note of the currency note numbers, the cash was handed over to CW.3 and thereafter, the said amount was kept in the pocket of the 11 complainant, then the hand of CW.3 was washed with sodium carbonate solution which was turned into pink. Then, the police instructed that the amount shall be paid to the accused only if there is demand and not otherwise. They prepared the demo panchanma as per Ex.P.1, then they went to the office of the accused, but he did not came to the office, hence, PW.3 telephoned to the accused and the accused told to come to his house at Attibele. Hence, the complainant himself and police team went near the house of the accused, then himself and PW.3 went inside the house. The accused received money and kept in the drawer, then signal was given to the police, the police came and caught red handed. The hand of the accused was washed in sodium carbonate solution, it turned into pink and the police seized the same under the panchama. He has identified the money as MO.1. They prepared the panchanama as per Ex.P.2 and took the photographs as per Ex.P.3. They also taken photo of house of the accused as per Ex.P4. They also seized the sodium solutions as per 12 MOs.2 to 7. The accused also given explanation as per Ex.P.5. and in the cross-examination, the learned counsel for the accused has nothing elicited to disbelieve the evidence of this witness except admitting that he do not know who has typed the complaint and he has not ascertained the date and place of the demand by the accused for bribe and he has stated he did not ascertain who has written the contents of the complaint.
13. He further admits that the accused informed to the investigation officer that he has not demanded any money and money is paid under pressure and it is dropped in the drawer. The evidence of this witness is re- appreciated after mentioning the evidence of other witnesses.
14. P.W.2-Girish Ramanna, a panch witness to the demo panchanama, has deposed that as directed by his superior, he went to Lokayuktha office, where the complainant and P.W.1 were present. The investigation 13 officer introduced the complainant to him. The complaint was read over to them and thereafter, panchanama was prepared. The sodium carbonate solution was also prepared and the complainant produced 10 notes of Rs.500/- denomination. He noted down the numbers in Ex.P.6. P.W.1 directed to check the pocket of the complainant and it was empty. Then the tainted notes were given to P.W.3 through him. Then his hand was washed in the solution, it was turned into pink and he has identified the panchanama as Ex.P.1. Then at 1.15 pm. they left to Huskur. The vehicle was parked near the house of Maddurappa, P.W.1 and C.W.1 went to the house of C.W.1. The accused did not come upto 5.30, then the complainant made phone call to the accused and the accused replied that he is in the house and asked them to come over to his house. Then at 6.30 p.m., they went to the house of accused. The vehicle was parked at a distance. P.W.1 and the complainant went to the house of the accused. The investigation officer instructed the 14 complainant to pay only on demand. Then at 7.45 p.m., the complainant gave signal by rubbing his face with towel.
15. P.W.2 has further deposed that, thereafter, the complainant identified the accused as Purushotham and the said about Purushotham receiving the money. Thereafter, the investigation officer asked AGO-accused about receiving the money. The amount was found in the table drawer, it was collected by the investigation officer and compared with currency notes and confirmed. The hand of the accused was washed which turned into pink and the water was collected in the empty bottles. Then, phone call was made to Tahsidlar. Thereafter, the accused was brought to the police station and prepared panchanama as per Ex.P.2. A seal was given to him and the same was marked as M.O.8. He further deposed that when the investigation officer asked the complainant, he said that Purushotham demanded and received money. When the investigation officer asked Purushotham, he said that under force, the money was pressed into the drawer 15 and the said Purushotham has replied as per Ex.P.5. P.W.2 has also deposed that he signed the photographs which were taken during panchanamas and he has identified the same as per Exs.P.3 and 4 series. This witness who stood outside along with investigation officer said that the name of the accused was Purushotham and he received the money, but, in fact, Purushotham is P.W.1, who is a shadow witness and the name of the accused is Sangamesh.
16. In the cross examination, the learned counsel for the accused suggested that he was not present at the time of preparing panchanama and P.W.2 has denied the same. P.W.2 has further denied that there was no material in the mahahazar to support the version which was stated by him. P.W.2 had admitted that he has not stated as per the evidence that is marked as Ex.C.1 that Purushotham received money, but he has stated Sangamesh has received money, but not Purushotham. As per his evidence, though he has stated in examination in 16 chief that the accused Purushotham received money, but clarified in the cross examination that the accused Sangamesh received money, but not Purushotham.
17. P.W.4, the Deputy Commissioner of Urban who has accorded sanction for prosecuting the case against the accused as per Ex.p.11. The lengthy cross examination made by the learned counsel for the accused, but nothing elicited to disbelieve the evidence and the sanction granted by this witness for prosecuting the matter.
18. P.W.5 Hari, who is Junior Engineer of P.W.D, who prepared spot sketch in the house of accused as per Ex.P.12. Except the suggestion that from the watching point, if one cannot see the places ABC and nothing elicited.
19. P.W.6 Mahamad Jafer, police inspector and investigation officer, who has deposed that he recevied complaint from P.W.3 and registered FIR in crime NO.114/2006 and issued FIR as per Ex.P.13. He 17 summoned two witnesses P.W.1 and 2 and introduced complainant to the witnesses , prepard panchanama, note down the note number and given instruction to pancha witness 1 and 3 to hand over the cash to the accused only on demand and also speaks about the seizure of the cash from the drawer of the accused in his house. After investigation, he filed charge sheet.
20. On perusal of the entire evidence on record, it is an admitted fact that p.w.3 was the complainant turned hostile and not supported the prosecution. The only evidence available to the prosecution is p.w.1 a shadow witness, p.w.6 police officer, who reiterated FIR and laid the raid seizing the cash from the accused and filed charge sheet. The learned counsel for the respondent has contended that even if the complainant turned hostile, the prosecution is successful in proving the demand and acceptance of the accused in proving the complaint as per cash seized from the accused and relied upon the 18 judgment of the Hon'ble Supreme Court in Neeraj Datta's case supra.
21. The Hon'ble Supreme Court in the case of Neeraj Dutta stated supra has held at paragraph No.68(f) as under:
"(f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant."
22. In the above said case, the Hon'ble Supreme Court has categorically held that when the complainant turned hostile or died, the prosecution can prove the case by adducing the evidence of other witnesses by way circumstantial evidences. Here in this case, PW.3 has 19 turned hostile in respect of demand and acceptance of bribe by the accused and on the other hand, the prosecution able to prove the demand and acceptance by way of evidence of PW1-Purushotam who is a shadow witness as well as panch witness to the entrust panchanama and PW.2, another panch witness to the entrust panchanama and later, he has accompanied the Investigating Officer while raid. The Police Officer- PW.6 who received the complaint and registered the FIR have categorically stated that on 03.01.2006, the complainant- PW.3 came to the Police Station and lodged the complaint as per Ex.P.7. After receiving the complaint, the case was registered in FIR which is marked as Ex.P.13. Later the Investigating Officer summoned PWs.1 and 2 who are the official witnesses from the Government Department where PW.6 introduced the complainant to PWs.1 and 2 and they demanded bribe by the accused for changing the khata and the contents of FIR has been read over to PWs.1 and 2 which was proved by the prosecution through demo 20 panchanama marked through PWs.1 and 2 as per Ex.P.1. The signature of PWs.1 and 2 marked as Exs.P.1(a) and 1(b) and both these witnesses have clearly stated that the complaint filed by PWs.3 and 6 also deposed regarding preparing the panchanama-Ex.P.1. PWs.1, 2 and 6 were categorically stated during the demo panchanama, the complainant brought cash i.e., the tainted money and phenolphthalein powder has been smeared, then, it was counted by the witness and kept in the pocket of the complainant, thereafter, the hand of the witness was washed in the carbonate sodium which was turned into pink and the Investigating Officer instructed that if the accused accepted the money, then his hand will be turned pink if it is washed with the sodium carbonate solution. Thereby, the prosecution able to prove from the evidences of PWs.1, 2 and 6 and Exs.P.1 and 7, the factum of previous demand has been proved.
23. As regards to the raid and trap proceedings, PW.1 has categorically stated that he went along with the 21 complainant as a shadow witness where the accused asked the complainant to come home, accordingly, the raiding party went near the house of the accused and then sent PWs.1 and 3 for handing over the money and PW.1 has stated the accused received money and kept in his table drawer and subsequently, PW.3 gave signal and immediately, the Police Officer along with PW.2 came and trapped the accused and washed his hand in the sodium carbonate solution and it turned into pink. The Police prepared the panchanama as per Ex.P.2 and the photos were taken as per Ex.P.4 and he has identified the sodium solution as per M.Os.2 to 7 and M.O.1 is the cash recovered from accused No.1. P.Ws.1, 2 and 6 have categorically deposed that cash has been accepted by the accused and he was trapped.
24. From the evidence of P.Ws.1, 2 and 6 and Ex.P.1 and P.2-Panchanama and P.4-photographs and pre trap panchanama and seizure panchanama and material objects, the prosecution has proved the factum of demand 22 and acceptance of bribe by the accused by way of circumstantial evidence, even though P.W.3 complainant turned hostile. In view of the judgment of the Hon'ble Supreme Court in Neeraj Datta's case, I hold that the prosecution has proved the factum of demand and acceptance of bribe of Rs.5,000/- by the accused in his house and the same was seized from the drawer of table and the hand wash of the accused was also turned pink colour.
25. As regards to the sanction, there is no serious dispute by the appellant's counsel, in view of the fact that the prosecution proved the guilt of the accused by way of circumstantial evidence and he was the village accountant and he was the person who was responsible for verifying the spot and giving report. Though the complainant stated that his brother filed an application for issuing khatha etc, but the fact remains that the accused called the complainant to his house and accepted the bribe amount to do the favour. Therefore, the trial Court by considering 23 the evidence on record, has rightly found the appellant- accused guilty and convicted him for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the PC Act.
26. However, the trial Court has not awarded any separate sentence even though the offence under Section 7 of the PC Act is punishable with minimum imprisonment of 6 months and extended up to 5 years and the offence under Section 13(2) of the Act is punishable with minimum imprisonment of 1 year which is extended up to 7 years. The trial Court awarded the common punishment of two years, without bifurcating the sentences. Therefore, it is required to be modified.
Accordingly, I pass the following order:
(i) The appeal is allowed in part.
(ii) The appellant is sentenced to undergo rigorous
imprisonment for the period of six months and pay fine of Rs.5,000/- and in default of payment of fine, he shall undergo simple imprisonment for two months. 24
(iii) The appellant is further sentenced to undergo one year rigorous imprisonment and pay fine of Rs.10,000/-, and in default of payment of fine he shall undergo simple imprisonment for three months.
(iv) Both the sentences are ordered to run concurrently.
(v) The appellant is entitled to set off, if any, under Section 428 of Cr.P.C.
Sd/-
JUDGE AKV/CS/GBB