Karnataka High Court
B Nagaraj S/O B. Revanasiddappa vs The State By Police Inspector on 30 October, 2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF OCTOBER 2009 .
BEFORE ' u
THE HONBLE 1\/IRJUSTICE ARALI NAoAJ9?}iJ" E 2- A'
CRIMINAL APPEAL No,f:f»31 /2099.-. j:
BETWEEN: . t M K
B.Nagaraj S / o B.ReVanasiddappa,?
Aged about 35 years ' M
Section Officer and Junior Engineer" '
BESCOM, Nayakanahatty
Taluka Challakere ' . V V ~
District Chitradurga. ' ' t' 'APPELLANT
(By Sri.RaVi B.Naik,:Sr.AdVf) ' ' '~
AND:
The State I1"ts:f",et*to'r.
Karnataka;vLo1gayu'kt:}'%«a_ Police' " - __ -- '
Chitradurga, ' .. RESPONDENT
{By sr1.s.G.Rajeen%d1-as Ready, ArE1v.}
***>3¢>E<*>3¢
' ;. This",C1*ifoi:p;a1 Appeal is fiied under Section 374(2) of
CAr;'P..C-.;'_pfayi11g to-set aside the order of conviction and sentence
passed by thejPr}'.Sessions Judge, Chitradurga in Special Case
[PCA] No.10/O6.fdt.31.8.2009 for the offence p/u/s.7, 13[1][d) 1'/W
' 13(2) of Prevention of Corruption Act, 1988, etc...
2 At This Appeal coming on for Hearing this day, the Court
« "made -the following:
5---.r-*"
Reddy deposited a sum of Rs.2,000/--. one
B.M.Thtn'1m211'eddy deposited Rs.4._500/~ and one
Smt.Jayamn'1a also deposited £1 sum of RS.2u.C»Q!0/_V-- in
the office of the BESCOM. On .;th"e_
"!
eoniplainant. and RV'? Ashok, the.
Sn1t.Jayarnma together niet th_ej«Et3;re'ti1sed':in'*h'is_ o!;{i.C.e
at about 11 31.111. and_reque'3te'd hin'}..v':t.<;.eh.ang'e
transformer. At that"V"t»iT1:.1.V'1e._theV" £'.'..f_',"('v.;A7.Ql.'t-§:f.'(i."V?§Z1€I11aT1d€d
from them a St';1i'i3" of Vetmount for
Changing the compiainant
was notttifeparied as bribe, he
1odi:g_:;Aed__.""hie':'-..,s21iEif.--.ieo123,t31d£';jt"'ibefore the Police of
3. The T 1913.} Court. on'a(ppreeiat':i0n of the om} evidence of
V.~F'Wvs1 to'3'£.1.; ciociin3e--nts at Exs.P1 to P22 and M.O.Nos.1 to 11
eind' ;zt1's-ox oonsidering the orai evidence of DWI and
Vdocttnieint at heid the accused guilty of both the said
offences 'andA..aocordingiy, by its impugned judgment and order,
Co.nviete'd.t him for the same.
.. Sri.Ravi B.Naik. ]ear'ned Senior Counsel appeat'iiig for the
ogjtuellant, ~ accused strongly contended that the prosecution has
" not estabiished its ease 21ga1ii1s1', the a(i:c':1.1.sed beyond 1'CE1S(Z)i13b]€
"
doubt inasmuch as, t.he very fact that t.he accused demanded
from the complainant the said sum of Rs.4,000/~ as bribe for
changing the. transformer that was burnt and therefore. the Trial
Court committed serious error in holding the accused g-i._1__ilt.y of
the said oi'fer1ees. He further contended that. t.he p'roee'cu"tvion
further failed to establish that the accused
amount. of Rs.4,000/-- For favouring the ..f_?()1'I]}j')'lE11'l:}l';'i'1-'ll'. alsol'
contended that the acceptable evidenc'eof:'_'_[)W1 eziuthe
statement of the accused made Secvtio1i.3l3 the!'
accused has established his dele_nce,__tiiat the"rscapidppvvamotiiit of
Rs.4,000/- was forcibly thrusted~_irri§;o:V t4liejv"iploc--k.et of the accused
by PW] and therefore, tlj.e"'im:pug1'1&e'd and Order of
conVict.ion'l'dleserVes t:o'71b'e set"'aside".""l--Ie further contended that,
the Triall"_Cou1't .co:i1rnit..ted--.Js_ei'ious error in not properly
appreciating the oral e';ridence"lof PW] complainant: K.H.Srinivasa.
"PW2 Rarnai1i'i1iftl1y, lthe--...sh'adow Witness and PW? Ashok Kumar,
as to the fa4c'tiim"o£'_ alleged demand for bribe and its acceptance
by the 'aet:t1se:ij«;i':-511': the C.OI11plai11at'lli despite these witnesses not
fully support;ing the prosecution case.
: llS;'~.pPer contra Sri.S.G.Rajendra Reddy. the learned Special
ll"-___"C'ot1r1sel for respondent ~» Lolqayuktlia, while supporting the
V llimpttgned Judgment. and Order of conviction. strongly contended
that, though PW} complainant: has not fully supported the
#
$1'
at that tirne, the accused demanded from PWE complainant. the
said ainount of Rs.4,000/-- as bribe for replacenieiit of
t.ransi'orn1er. Besides this, if it is averrcd in the (?OI11I)1&1ii3t*..F_:}{,I31 I
t.hat the complainant" met the accused on 19.5.2006 M
that time when the accused demanded said an1ot1.n_t_: rm'n:.,
hifil, the evidence of PW] in his exarniiiationsviri;7ch_ie;ti:its-..'thjatV.,,__he
only met the accused on 15.5.2006 and*--it"was tirn:e,'.ttl1e"',.
accused demanded the said bribe a"m.,;§tmi.
8. Except the above and PW?
Ashok Kumar, no other record by the
prosecution to accused that, on
19.5.2006 and at that time, the
accused said amount of Rs.4,000/-- as
bribe in connection of said t.ransformer. This
being scgfii am of_the considered View that, the Trial Court
:Kcornmitt"ed '"eri'or*~.«_j.n recording its finding that the prosecution
pi'o\zed.j~beyo'.ndViV re{a.s:o11ab1e doubt. that the accused demanded
' Vvifrorn PW 1. V__theViA.:'said amount of Rs.4,00O/W as bribe towards
" '-itif",'t'Ebi'acen1en't,._.Lot' the burnt. transformer as alleged in Ex'.P1l
"c:or1';.pi'ai Ht.
., As to the factum of acceptance of the said sum of
did"-Rs.4,000/~ by the accused from PW1 complainant. as bribe
.
¢""--'=<..i cg"
for him at the office and therefore, they 1'etu1'ned to the office and thereafter. the accused came to the office by abeut 2 I_).1Tl. and then they both sat on a bench aiong with the accused and iaiked to him. He has further deposed that. at that time, he [PW---"~1.)» took out money from his pocket and kept it on the tabie sayinég' -he had brought said money with him and then came office, gave signal to the Police and the'fea.fter--'_4.'_I?eii'ce Inspector and others Came into the'a'off:iceA' "
accused, but he does not know Wt1ia_t*hap[iei3ed'thefeai'tei':
10. At that stage, carne""t;ey_:beV'"txfeateti 'iaastite and the learned Pubiic Prosecutor ,.He has admitted the suggestion of that when he met the accused,__ the accused whether he had brought thedbribe arnot1rni.,,and"iher1 he gave bribe amount to the accused;'a1'1d the accused took the same {mm his right hand and jtiii of his shirt. it is pertinent. to note that he has denied. the stieiiiestion of the learned Piibiie Prosecutor that, ._ __ . . .uz_;2:;
V V' his evi-deiice'in}*exan1ination~inschief that he kept the money on "_tab1e..a.n:d then came out of the office 01' the accused is not °f;rt;eL' .11. On a careful reading of the evidence of this PW1 complainant in the cross--ex.amination made on behalf of the &w»»
--l()~ prosecution, it could be seen that, he has stated therein that, he does not remember whether he stated before PWll that the accused asked him as to whether he had brought with him the bribe amount, to which he told him (accused) that, 'he' had brought it. He has further stated that, he does":
remember whether the hands of t.he accused were was'hled.l_lin Sodium Carbonate solution at that tin1e'aii--d. pwhethelrfi produced the said amount of Investigating Officer at that time; has "fu_rth_er :st'a_:tVe'd~that he" i does not also remember whether....¥5Nii_l (lnspeet.oAr)VA/tasked the accused as to how the said lartipGt1li'1t /-- was found with him.
12. PW? shadow witness. has stated in his evidencelihat, t.>_4l';'2..._¥lO.lp.1ii. on that date, himself, PWI complairiant_.. .PW3_ Rae. PWII, the Police }nspcct.or, lanldothersllllleft the office of Lokayuktha and went to Na_ya1~:.a11ah.at.t;.y' villvalge in Tata Sumo vehicle and at about 1.30 om. after 'theynfteached Nayakanahatty, the vehicle was stopped * place i1__e'a1'by the office of the accused and then himself and went to the office of the accused. He has further "deposed that, they were told in the office that the accused was at residence and therefore, himself and PW} t'oge.t:t1er went to the residence of the accused and at that time. the accused asked a.-"~"--«5m"'"°"'""'°-*** them to go to the office saying that, he would come to the office and therefore they returned to the ollice. He has further deposed that. at about 1.50 p.m., the accused came to his office and then himself {PW2} and PW} Srinivasa together went. to the ac(:used and then PW} gave the accused Rs/l,0O0/-- saying amount was brought by him as was asked it towards replacement of the 'transforme:rl and thezac-cused receiveld.
the same from PW] and kept it in the left 15'o_cket' oVf"rAhlis Sllniljtl thereafter, himself and PW} togetlielrhiariie out and' gave signs to the PoliCe~.__o1" Lo'kay'ul;:tha and" iiihmediately thereafter, PW11 Inspector carried' the'-l.(5_fiilce_ of the accused and asked the accused amount. He has further deposed. accused told PWI1, the Police Inspector, Lol;ayu'ki':h'aac_tfltai,'he did not receive any bribe amount, but said "'ari1,o.Li.1ji'l.was forcibly thrusted into his pocket. ,H.eyliaslifurthelr deposed that, then the Police Inspector cf thel'"a'ccused washed in Sodium Carbonate lsoiutyiori, when*t:yh"e right hand was dipped into the solution, its colou_r"lcarnVe «ll'o.._bel.c:'changed and when his left hand was washed, lithe colourV__voi'.vt.:he solution did not cliarrge. He has further @"_j-,.«depyosed that, i.\/i.O.No.9 are the currency notes rhat were 4'ppodgéecr¢ by the accused by taking the same from his shirt. p(;cl{etl.l lie has further deposed that the said arnouht, was taken 9 at I-Iiriytir and therefore. nothing was to be done by him towards the replacement of the said transI'ormei*.
14. PW] complainant has stated in his exai'ninatioii--in-- chief that he kept the said amount of Rs.4.000/- on the table in the office of the accused and then came out of the 'VQff'i'Ct'3\[". has stated in his evidence that, PW} complainant"g_avej'rt.he amount 01' Rs.4,000/-- to the accused a'i'id"tl'i.e&_ letter same and kept it into his left pocket.A:'o_i'd:his shdiri._ further deposed that, while giving-v.th'ee%said the' accused that he had brought asked by him. The accused has in his written statement submitted' u_nde_i-W Vof;«Cr.P.C. that when PW1 met hini at V that time itseli" he told him that est.irnate in. respect of "re'piac--eii1ent of transformer was already prepared' 'bynhirn or_1VVI6.5.v2O06 and the same was forwarded to 1".the"s:iifierio'riofficer and as such, nothing was to be done by him int-hat" co1in'ectio:ri-and despite saying so, while he was coming i Vhout of the the complainant delil:>erately thrusted the said " *:i."V'attietii'it of Rs'.4.000/w» into his shirt pocket to his sizrprise and as did not voluntarily receive the said arnotintz. ow:
d "Thi.p_;:§eswan1y has stated the same in his evidence. The presence DW1 at the scene of offence at that time is not in dispute. Further, the evidence of DW 1. that he is seen in photographs at €,' Exs.P20{a] to {d}. which were taken. by the Police concerned at the time of seizure of the said amount from the accused has remained totaiiy unchaiienged. On the other hand, it is the Very case of the prosecution that the photographs at Ex.P2O series é' ' we were taken by the Police at that time. "f'herei"or_e,V presence of DWI at that reievant time in the office .of*--the:fy cannot be disputed by the prosecution. .
15. Admittedly, when DWE offence at the relevant time. there is no eXp1a.natiori,as~,to'why the ' statement could not be recorded:~by...PWfi-.1 inVesti--gao.ti'hg Officer and as to why he was .fbafed:oi'_Vthe prosecution witnesses. Ex.P6[f)_'the geiiiiViii'eijessA.i:Qf which" is not in dispute. reveals that:._ estiri:at_'ion prepared by the accused on 16.5.2006 three to the date on which the accusedgis alleged» to demanded bribe of Rs.4.O00/M from gfofinpiainarit and the said estimation was forwarded to his siipei*ior :i'~.E'5esides this, PW9 G.N.Rudra Prasad, the H'Assistant Exectitive Engineer. Chalkere has stated in his if "'f:v".fA"-zwfidence tiiat, the estimation that was prepared by the accused tiehe sent to his office and from there, it was to be forwarded f f£)__H,i':I'iyt11' office. He has further deposed that the estimation was received in his office and the same was forwarded to Hi1'iyL1.I' office, but he does not remember the exact date on which it was C"""'~("""""""'"\;..»v i"orwai~ded to I-liriyur office. Thus it is clear from the evidence of PW9 and the document Ex.P6{l] that, the accused had already prepared estimation in respect. oi" replacemerit of transforriier on l6.5.2006 itself. In view of these iacts, the stibniissioxt-Q1" the learned Senior Counsel for the appellant -- accused t.ha't::.d'uty of the accused was only to prepare the estimation to the superior office and said estimatioi1..was.' already' it on 16.5.2006 and as such. there coulddbe for demand an bribe either from VPWE, or from randy o'th"e--r... fersori-V towards replacement of the b.1,1r'11.t_ "'l,_vI".€if1S'llC)1"-}71Tl'A6l'V.J§ deserves acceptance.
16. Further: and 2 that, they together met the 'a(:.e::u,..i.seac on' 'the'-it. .al'a'.erno0n at his residence since he {accused} hot If the accused had really demanded" riioney V-i'ror'nllPWl . could have asked PWI about the :"csaid.Vaf:?oti*ht'. land he could have received the same at his i'eside1."ice' l»hls«1_e'adi'Ql'f~'asking PWsl and 2 to be at his office and he l comeAt--h_ere_.> PW2 has stated in his evidence that PWl " the said' arriount of Rs.4,000/~ to the accused saying that he l3'ro_t1'ght the same with him as was asked by the accused and "'"l..lu'l6I"i--E'Ll'1€ accused received the same from PWI cciziipleiiiiaiit and ll"~.,liept it in his left pocket of his shirt, PW} has denied the SLlgg€TSl.lOIl of the learned Public l-"1~osecL1t0r that. his evidence in after PW1 complainant came out of the office of ihe accused and /5's'71*L-M7;
gave Jiiigvs and then Lokaytikiha Police entered the said office and asked the accused to produce the bribe amount and tliyelns the accused took out the amount from his shirt pocket ai.i«d.pro_duj-::.e'd.« the same before the said Police a nd then, 1*ightll"'i1a_h;i.oiitheu accused was made to dip into Sodium Carbo'1'1ai.e sczlution and its colour came to be Changed. The learned Publliicl'Prosecu'tof', treated this PW3 hostile and crossqexamined._hiVin;_= his it cross--eXamination, this PW'3..\has;iald1niitelG_._tl1e lstiggelstion that after the Police of Lokayuktha the accused, the hands of the vx «tsiodiuni Carbonate solution and Said amount by taking it from his since this Witness has given two in. his eXan1ination~in~chief and another in his CC,--:oss~exam~iVnat:ion as to t.he said 'fact, 1 am of the ,-o'peir1io:f."'that,' the eVi"c'iei.1-.ce«'of this witness should not have been i*elAied. upon "T-Ifial Court.
181 1n_su;j.3:ort of his contentions as to the defence version as {C-vliflfl presumption under Section 20 of the P.C.Act, .Sr'iC_§1',avi'"~B.Naik, iearned Senior Counsel has placed reliance on .__tWo decisions of Honble Supreme Court:
,¢~"*---»-.§WW"~"*---'"
49, QfLakhbir Singh. On the alleged day of occurrence along with Ram Badhan peon and some customers were present at the tea shop of Janalcraj at Kotkapura. where Jasdev Singh came and he tried to forcibly thrust the currency notes in my pocket. which I tried to push with my hands and I raised alarm. The notes remained with Jasdev Pal Singh and the police came and they took the curreracye. notes from Jasdev Pal Singh. Sarwan Sir1gh_M'arid, Hardial Singh, AS! were not present. Jar1ak;'Ra;','VV'th:e 5 .
owner of the tea shop was present throughoiit.._i1"'iie"t V' police took me to the police statior1...,a:r'idV=thei,r concocted the case against me~on.423~.'12~vl 988 and'_ the documents were ante«date;f:l." i it h " it '
20. In second of the said»,d_ecisionsl,--..i.e., ceise'uolfr.
C.M.GIRISH BABU -~vs- CBI, COCH11'\i;."'iHIGH 'coigqfir (53 V [(2009) 3 SCC 779], the Hoiible S;£ii5fEiti]:€VlC'Q_11Y1 qiioted with approval, at paral8, its earlier 1nlihe...c"ase of SURAJ MAL v. STATE if1"'{'1§79) 4 SCC 725 equivalent to 1980 (Cri)' "E under:
_ * V _"18. in Asurq; Mal v.State {Delhi Admn.) n979) 4 .' SCC V"/"'25 : 198G«S_C_Cv (Cri) 159, this Court" took the view t that tat. SCC p. 727. para 2) mere recovery of tainted ' _V'rnoney'div.o}'ced. from the circumstances under which it is p'aia'"ais" not'_s~ti[)'icient to convict the accused when the "AsubstanttiveEevidence in the case is not reliable. The mere ree_oiLvery by itself cannot prove the charge of the prosecutiori against the accused. in the absence of any evidenoe to prove payment of bribe or to show that; the A' accused voluntarily accepted the rnoney knowing it to < bebribe. "
l 21. The aeeiised, besides stating, in his written statement tilled under Section 313 of C1'.P.C., that since he had filed € complaint against fathei'~in~1aW of the complainant' in respect. of theft of e1.ect,ricity in the cinema theatre run by him. the cornplairiarit herein has tiled his false complaint' in this case against him. has pmduced copy of the complaint dated 7V.3_,_2O06 filed by him {accused} in the capacity of Section BESCOM against the father~in~1.aw of the also produced copy of the F.I.R. issued .:tg.:1ir1st it law on the basis of the said conlplaiht pertinent to note that. the said eovr"I:..pV1aint;be1ng we»! ' I»:
prior to the inciderit oftrap in_.this_Case, it could fot be said that the same came to be fa1se1y"fi1e£disby'-the'ac_cused to support his defence version;-V T1ie"'Vv'ritt,eri ._state;:11ei1t of the accused Z supporteci:'iVbh3'f'V(io'cuh'iei1t§t.'f'fclearly establishes that the defence versiori of Vt'hVe~.Vaccii-sed. appears to be probabie and , _ 4 fltafluuxfl {:7 plausible} that 'too'? iV1'1'._'EhAC absence of positive evidence by the »"'prosec.:Lttior1_p.that{_'the«aec«used demanded from the complainant the said. ja'm4ot1;m';A.'as bribe and the accused voltintarily accepted V the saidiianiouifii,iroiii the complainant. Therefore. I am of the 4 consideredoepihion that the Trial Court, lost sight of this aspect 'offli:',hei"ease. The observatioiis made by the Horrble Supreme 'C-ot1i:t in the decisions referred to supra support the defence "trersiori of the accused in this case.
IO
22. For the reasons aforesaid. the present appeal is allowed. The impugned Judgment. and Order of conviction dated 31.8.2009 passed in Special Case UPCA} No.10/2006. Pr1.Sessior1s Judge. Chitradurga is hereby set. appellant -- accused is hereby acquitted of th_e__oAi'fer1'(';-es l._un8de8r_ Sections 7 and 13[1)[d} read with Section d_}'3[£3.}"'.Qt'-itl1e_.:pngyention of Corrupiion Act, 1988. Howejv¢i*. theyifnpugned.'o1"der'*.aswtop disposal of Material Objects is left u"odisturbed.._V_ if any fine E11'I101,i17|.ll."'-i._S "by the accused in compliance with the order C-fA_ same shall be refunded to him.
If thjéiiacvtiusied isuffrioi iiflequiredivitov be detained in Connection with any other case, at liberty forthwith.
A copy be sent forthwith to the Trial Court also to Prison Authorities concerned for infQril.iatio'n:"'and tronfipliance.
Sd/ -
]UDGE . , /-