Karnataka High Court
State By Lokayuktha Police vs Chikka Nanjundaswamy on 8 November, 2010
Author: N.Ananda
Bench: N.Ananda
M 1 AL!)
IN THE HIGH COURT OF KARNATAKA AT -
DATED THIS THE 08TH DAY OF NOVEMBERR2»0"1Vd
BEFORE" _ 2 V
THE HoN'Bi.E MR.i1UsT1VCE:N,,ANAi§,EA - = "
CRIMINAL
BETWEEN: V V '
State by Lokayuktha Polieei: '_»__...APPELLAN'I'
(By Sri.S.G.R§a}e'r«}@_i?a I~'{edc1y;..Advoe'aie} "
AND: 4 V i i V
Chikifga
S/0 Kappa'1ach3.«1: '
Aged 47 Years. .
R. I Nada Kacheri, Halagur' '
Hobll, Halagur -_ '
Resident of iiififorit of H.i5.B.S.
S._eEo01_, Giithalu' R.Q_ad
" .Mand'ya. ' ...REsPoN1:)ENT
{B3} Prasad, Sr. Advocate}
2 '1'.*.ii'sii':~.V.a1V'3pea1 is filed under section 378(1) 8: (3) Cr.P.C..
playirag togrant leave to file an appeal against the judgment dated
18.09.2006 passed by the Principal Special Judge, Mandya in Spl.
x Case No.10/1999, acquitting the respondent/ accused for offences
V under sections 7 and 13(1](d){ii), punishable under section 13(2) of
Act 1988.
This appeal coming on for final hearing this day, the Court
' delivered the following:
-3
JUDGMENT
The respondent was tried and acquittecl :';{:~"-5rf;£r;.ces under sections 7 and 13(1)(d)[ii], punishable:.t1nci§:i:§eeti0n*. 13(2) of the Prevention of Cormptiu-npA(§t, it /the Act'). Therefore, the lgoliee _Th--a:g , appeal.
2. I have heard 'learned Counsel for appellant/Lokayultta fi\./I';SV.Rajendra Prasacl, learned senior / .
3. In bliefj'ttie:ease»e:f"pr0se(:uti0n is as f0110ws:--
Theu ifavtlrer 'informant {PW}~M.S.Suresh} was as g,reup--:D employee in Sericuiture Department. it pi":5.c4§Q'1.997. the father of PW1 died while in service. ._ tltieliimother of PW1 had submitted an application the Tahsildar of Malavalli Taluk for grant of Survival .. VaC"ertiVfi'eate to get pensionary benefits. At the relevant time, t the respondent/ accused was working as Revenue Inspector in I-ialagur.
m. ¢£;.«i»~.~.@./i.
__ 3 On 25.06.1997' and several days before. P'\?V.i had requested accused to forward necessary Tahsildar. In that connection, accused had tillegaiv' gratification of Rs.500/-- from PW acfcused b T i had received a sum of Rs.100/--z7fro'm and demanded him to pay remaining Rs..V4Q()','.._V 'atVf"the"'eVar1ies't;V Therefore, PW} contacted' 'Vp'Poi*it_:e insvpectflor (PW4-- T.P.Basappa} of Lokayultta at over phone and informed the 'same. V~d€}.yVV§"i.e., 26.06.1997 at abotitu PW1 Visited the office of Lokayuiita and lodged first information. The Poiice 'Inspector'w-of Lokayukta Police namely PW4-- TQP-.13asappa secured shadow Witnesses viz PW2--Rajanna.R ' 'PVv'3'_#D:'asappa. PW4 made preparations to lay trap and tainted currency notes to PW} with a specific intstrdction to give bribe amount to accused only if it is it if 'demanded by him. Thereafter, members of raiding party, yvhich included PW1 to PW4 proceeded to Halagur to the ' room--cum--office of accused. PW1 was asked to meet ~ 4 accused. PW2 was asked to accompany PW} tovppseelas to what would transpire between PW} and entered the room--curn-office of accused.V.a.cc11st':d.V received RS.400/- from PW1. PW} came out and~.:flasheVd.{Aprie-- ' determined signal by removing his cap, irnrnediatel}/."PVlI¢1ep and other members of raidivfxgrparty Vmslhsfil the room- cumeoffice of accused"*and._tai"nt,ed currency notes of Rs.400/-- (four currencies of t"VR'siI1Oil};.3_§l~en_omination), which accused was"'laoidi1ig i;n--.fhis. «righ.t____hfand. The fingers of acc11is'edV"w:ere into""'sodium carbonate solution contained in bowls and resultant solution turned into pink._cAo1ou.r'btVand the same was collected in two __bottles.v...PW4 prepared trap mahazar. The accused ' .V'whe11.§'L1est£oned about his conduct did not give any answer.
" The Officer [PW4) completed other formalities. P44W5--"BV.S.t}ayaraj the successor of PW4~T.P.Basappa, it 'lobztained necessary sanction to prosecute accused and filed 73 , "L I I 'charge sheet against accused. Q {a ,5 __
4. Buring trial, PW1 to PW5 were exarri.i.r1led'l~.Vand documents as per Ex.P.1 to Ex.P.1.-4 were material objects as per l\/1.0.1. to M.»Q.8 were
5. The learned trial Judge oi} ap"p1'eciatior1_."ct'lleviderice and on hearing learned cou__1i's.el for'V-oartieseil'ha-suheld prosecution has failed to proveithat. _»accusc»d:Vhadf? demanded and accepted bribe 50i_')/ or reward to give report to the Tahsildairifohr i'ssVue&:o_1' Certificate to the mother qffl Q accused. 'Therefore, Lokatyuigta thismappeal.
6. vieiv of accused for aforestated offences, theltol1.owing'poi:r1ts vvould arise for determi.nation:--
., (1) Whether the prosecution has proved that on f2.5u."o%6;.1:'s97 and 10 to 15 days prior to that date, had demanded PW1--M.S.Suresh illegal l"'Vgrat4ification of Rs.500/- to show officiai favour forwarding report relating to issuance of survival certificate to the mother of PW1? ,\_;_ = {2} Whether the prosecution has proved that on 26.06.1997 at 2 p.m., in the room--cum~offi.ee accused, accused had demanded and illegal gratification of Rs/L00/-- as % reward to forward docj;1fr'1en.tus xltolf, issuance of Survival Certifilecatelto the». ;fnof1;e1?[;5£' PW1 and accused had position by corrupt andcejillegalhrnearies to pecuniary advantage;----~ "thereby l f"cv0Inm§.itted offences under_fl'seAc'tionsvvll. 13[1][d]{ii], punishable undersectilonb Prevention of Corruption Act, u ' {3} trial Judge has properly app'reciated..jeviden'ce"on record?
[44] Wheth'erV_VV'the impugned judgment calls for ' 3..A"interference'?"f V V'-.V:P.W}";--i\/I.S.Suresh is the first informant. As per the is of PW], he lodged first information on 26.06.1997 l fats} 1. I5 a.m. However, from the evidence of PW2 & 3, I find the Investigating Officer {PW4} had secured them to the office is 7 of Lokayukta Police on 25.06.1997 and they were..Vi:nforrned to come on the following day. _ 1 1 if
8. PW1 has deposed; that on 25._G*6'.~ 1» contacted the Police Inspector of if over phone and informed? him «about.
gratification made by accusetliT'_lfhe_ has not given explanatioriifgoir. witnesses Viz PW2 8: PW3 duringgeveningflo'f_25V,f1E§.1.9£l1.7ll;\.:l._Viiitf1out there being any specific" irl'foil'mationg or firs3:t':i11fo.r1:'r1ation about alleged demand._ oflVhi*.ibef'Vi Th_ilsv...f_actf assumes significance in View i'nconsis_tencyl in the of PW1 8: PW4 regarding point Of;tliI'"11¢:. at which'iirst'information came into existence. evidence of PW1--M.S.Suresh, he wrote first ._ 'in_forfiiatio1il.l'Vv'vlietween 11.15 am. and 11.23 am. on 2'8.06_'.'19Cl'7 in the Office of Lokayukta at Mandya. PW1 has .. fieposerl that he Wrote first information in the presence of 1' '''JV'PCliCC Inspector (PW4} of Lokayukta and he also took the assistance of Police inspector {PW4} when he Wrote first NA /\"§L"*4@\~ 3 as information. Contrary to this, PW4--T.P.Basa§;ipai'i._g_ the investigating Officer has deposed; that on Mysore and reached the office of Lokayukta.----1vIand3ta at a.rn.; on that day at 10 a.m., shadxowixivitnessesgf{PVV$£~.§t appeared before him and h'e.'_requfes_ted thenr co--op.e1'atei with the investigation; for the first informant (PW1); on a.mv.f',A came to the office of Lokayuktavvith information and lodged the ss'ain;e;'on;=the basis PW4 prepared first informationisiepoftfasfper V
10. W'eVgfirif:(i.thefjVersion of PW1 8: PW4 the manner in which first " 1fo'rrnatio'n was brought into existence is g disicrepant. Asfffperfvthe evidence of PW1, he wrote first the presence of PW4, that too by taking the PW4. As per the evidence of PW-4. PW1 came Withagwritten first information and lodged the same with .VLoi_<ayukta Police at 11.15 am. on 26.06.1997. These E discrepancies give raise to a reasonable doubt regarding time M 9 and manner in which first information was b1~o1_.igh_ti..into existence.
11. PW2--Rajanna.R., has deposed; on PW2 PW3 had visited the Office of were informed by the Lokayukta PoIice"that _P'i7";7 lodged" , first information alleging that 'accused vifas dernanding illegal gratification for givingTS:irviifalllgéertifigcate regarding death of the father of PW1; the explained the contents of first~in'fo1'matigons;:
12. 'Thus, wefind PW1, PW2 <3: PW4 regarding manner whlilchx'.tfirst_:iinformation came into existence canflnoti'~ stanud"i~.together. The evidence of PW} to PW4 .A :i:egardAing-gjreparations made in the office of Lokayukta to lay liasu_'i_n_ot~l.,been seriously controverted. PW1 to PW4 have deposevd about preparations made to trap the accused.
"1*3._ l3efore appreciating the evidence of prosecution "".iA}itnesses regarding alleged demand and acceptance of bribe, "it would be appropriate to verify if PW1 had reasonable belief R, _ C];)K_«_..i..,{K/1.1-._<~.,bx.~ _3_o _ that accused had any official favour to dischar_gé'i'ri.' of PW}.
14. it is in the evidence of {:iw1::'_A_Atl*i'at submitted an application forgrant of Survii/al 'Certificate to!' the Tahsildar of Malavalli_..fl;aluk;..__A " iaippliciation was submitted to the Tahslildar of on 28.05.1997.
The mother oi"_PW1 also furnished an indicating her family this, it can safely be :nfe§;pedQ5i..,li'§i97. the mother of WW1 had filed an applicationfor"grarit Certificate after death of her higsband u$hivali'r1gegowda. The copy of application is On the obverse of the application I is an endorsement made by the Tahsildar, Atbmvarding' the said application to the Revenue Inspector of AA Halagtir Hobli for verification and to submit a necessary * .report to him.
* ,§\_/L'\J1"'~ i y\J
--1}.
15. From the contents of ]E§X.P.6 to Ex.P.9, I fi11d.y't'hat on 19.06.1997. accused (the then Revenue Inspector Hobli] visited the village of PW1 and prepared The accused had also prepared; anydul submitted a report to the Tahsildar:;.'AoVnl 23.06.1997, accused had perfo:r1nedlh1s._du--ties agytfsmgardingt necessary report to thexV.Tahsi1'da.r:'an'd.'hadlrecomfnended for grant of Survival Certiftcate of PW1. In the circumstances; as ,7 had no official favourslto seiek from a'c.c'usedl ' "V
16. 'RN41lthasw.def)cs4ed;l'on 25.06.1997, when he had met ' accuvseyd, accused had told PW1 that he had performed his dutieslvllllland forwarded necessary report and V"rtol_}the Office of Tahsildar at Malavalli. In view of lc.onter:.tls: 'documents as per Ex.P6 to Ex.P9 and evidence of PW}, it Is clear that as on 25.06.1997 accused was not m a .y:1a'o's1t1on to show any official favour to PW1, equally so PW} did not have any official favour to seek from accused. In the circumstances, one would expect after 25.06. 997, PW} N' fa/\__'§,W_¢Q¢ .
»~ 12 should have visited the Office of Tahsildar at Malavali-i___to get Survival Certificate as necessary report 'v 5 recommendation had been submitted {Revenue Inspector of Halagur Hob}-1). «toil Malavalli. PW} had not done so..l'Qn'.'_'the has alleged that on accused 1dh_ad.;l'dwen'1andedad' illegal gratification ofA,Rs.50Q_/...lla13d"'PW1 p'a:aHRaf1o0/- and promised to pay remai1iingl'--irllegall'gratification of Rs.400/-. PW1 was annoyed of"tir1e": same,' contacted the Office of Lokayulitae.ffidlicleifi-ox'er'phone lhaiidlinforzned about demand of illegal.gratificatian.lpbyglaccused. The conduct of PW1 would cast a serlious 'do'uht«...l-'as to whether PWl had genuine against....accused. PW1 has admitted that he had ' .»lco_n_tacted'xllokayukta police over phone during evening of '' .2'5t.l06v.l1 fact shadow witnesses viz PW2 & PW3 were secured the evening of 25.06.1997 and they were sent at V. at 'back vvith a direction to come during morning of 26.06.1997. flogfi 26.06.1997, when PW2 Si PW3 reached the office of Lokayukta at Mandya, PW4 was waiting for arrival of PW1. N ~- 13 PW} has categorically stated that he wrote theg first information as per Ex.P.l in the office of taking assistance of PW4. The deliberations PW4 before first information wasmbrought, existence 9 would lead to an inference that to trap accused. PW4 (Investigating."Officerl preparations to lay trap hadnot received"any./documents from PW1. Even PW4' lh_;adl'no't::'bothlered.to enquire as to whether application the«V,lniother of PW1 was forwiardueda. "'ac'c.u:sed lo"r""'the accused had kept the application pending illegal gratification from PW1. 17;.' 'V Now a.dve1t1ng' to the evidence adduced in proof of and acceptance of illegal gratification by accused, I different versions. PW1 has deposed that r-a__iding~ led by PW4 travelled from Mandya to Halagur. A Afte1'v.j__e'ep came to lialagur, it was stopped at a distance from if 'V_roc;-m--cum--off1ce of accused and PW4 instructed 'E-"WI to hand over tainted currency notes if accused were to demand bribe and to come out and give a signal by removing cap. N Y Ma _ 14 VIA! PW1 and PW3 {shadow witness) entered roorn«cum--Vo'ft_'1ce of accused. The accused after seeing PW3 questioneddas to who PW3 was. PW1 stated that PW3 is related he had come from Malavalli. At that "t:o1dVVac_cused that he had brought Rs.400/--
previous day, so saying PWi--..gaye tai"11t__ed notes of' Rs.400/-- to accused, who received"-~.t_he same his right hand and counted heid the same in right hand. Iinrnediately; iflgtheretafter. came out and removtedtv was"'wait1ng near the roorn--cuIn« officehof"accusedfry1sh_ed. the roorn--cum-office of accused along 1ne1n_bers'«.o1f raiding party and took tainted notes~.from the hands of accused. The tainted ' currenc3r'n_otves were kept in a cover and cover was sealed. v_.At_this juncture, it is pertinent to note that PW1 has AA categorically deposed that he told accused that he had V * brought bribe amount and paid tainted currency notes to accused, without there being any demand by accused. Contrary to this, PW3 has deposed that after PW1 & PW3 N _
-15 _ entered the room»curn--ofi'ice of accused, PW3 saw a--::_eused sitting on a chair, PW} <3: PW3 sat on chairs. questioned PW1 as to who PW3 was? PW} 'isllé related to him and he had come ' accused told Pwi that when heb'*had_ldenia:i'ded PW1 had given Rs.100/- £q'as...§0o/-----.,V:i' PW1 has promptly regglied /» and gave RS.400/- to -firinly held tainted currency_notes*ir1 PW1 came out and Zgaflfe signai"'i;o PW4 by removing his cap. PW<;V"*._;,)rid._ _.of raiding party rushed to the roorri--cu'm.--coi'fice-__of._ accused. At that time. PW1 showed V_andu"t'old____F'W4 that accused had received illegal ' ;lgratif1cation"vof R5400/--. PW4 conducted phenolphthalein 'test fingers of accused into sodium carbonate solutlonand the resultant solution turned into pink colour " the same was collected in a separate bi ttle. PW4 = : 'prepared trap mahazar. j\J'.
"' ""§'€&\ '
-16 During cross--examination, PW3 has admitted» after reaching Halagur, the jeep was stopped at a .290 meters from the room--cum--office of accused. remaining members of raiding Zparty distance of 100 meters from the PW3 has deposed; after ass' to Why he has not given '{3ertificat--c._.AAAHti§ that time, accused questioned 1- has it "had happened to remaining of iliiegai has deposed;
after "sigma: \}\?a's"given to PW4 by PW}, PW4 rushed to the of accused, accused was hoiding tdaintedg currencfnotes in his right fist. . deposed that they had stopped jeep at a distance "off-'2,.?30 meters from room--cum~office of accused. hp-W4 retufiated instructions to PW} 5: PWS and sent them to AA roorru__cum~office of accused; thereafter PW4 and other 'r.mjembers of raiding party had taken positions near room-- cum--office of accused; after ten minutes. PW} & PW3 came out and PW1 gave pre-determined signal to PW4; thereafter, ~17 PW4 and other members of raiding party rushedV..to_:froon'i-- currroffice of accused; at that time, PW} sho_wed_ PW4 had brought typewriter and startedV----»pre~paring sgaot. mahazar; at that time, policeiaaconstajbles accused and they have talgerttainte_d"::urrency. Vfnotes; right hand of accused: PW4 hadiconductedu'phenolphthalein test. The solution turned into andthve resultant solution was collected categorically admitted thatafter trap, --wno"'doc§iments were seized from roorn+'cur11~.o'tifice cfcugfsed. f 3 ' '
19. we the evidence of PW} that he has not deposed*about7,derriand of illegal gratification by the VPW3ahas..given altogether a different version. As on ' 1997, accused had no official favour to i' show u1f'I1uch less PWl had any official favour to seek from iaccuxsed. The accused had performed his duties and if it submitted a report to the Tahsildar. PW} was aware that Atgaccused had submitted report for issuance of Survival H Certificate to the Tahsiidar at Malavalli. in the {UV caéx/».«_l9\-« i 'av, .-- 18 circumstances, there are divergent versions given b-"y._pPW1, PW3 81 PW4 as to what had transpired between':l:'V"'illl:'1.:.land accused. The version of PW}, PW3 and after receiving bribe amount frorr1"PW.1g currency notes in his right hand Ztilgl cérmg cum-office of accused andllsleized right' hand clearly gives an impre.s.sion that eonnivance with PW4 had planned' tainted currency notes into 1'ig_htV__han:d"loi' it appear that accuséd 1'V"l5E:'f13Vli"' ed».:fl19e'§5§1"Vgratification from PW1. The Tahsilclaif_ to of PW} gave an application was not lc'i«ted~ as a The examination of Tahsildar was tollprovev as to whether the application was ' accused on 25.06.1997. Above all, PW1 had no ".re'asons--7ptofbelieve that accused was competent to issue Sursrivalhvtlertificate. In fact, accused had submitted the 2 i. it 'report with his recommendation to the Tahsildar for grant of 'Survival Certificate. The accused has taken a defence that a relative of PW} namely Nanjunde Gowda, who was also N _F JL 'H... ..gr'\.. '\..\C;£{K'e
--- 19 working as a Revenue Inspector had some griev'ance~ accused and that is the cause for PW} to..lb1ar.vb into motion against accused. Ti'i;oughA t1:,e=_ga¢¢usea,Vvhasvggnpt established his defence, yetit' is pi'ob'abIised.v--'F;},lfthe vjersionp and conduct of prosecution witnesses. V The learned of evidence of PW1 to PW5. has under which first information iffiiistence is not free from 8: PW4, it is clear that there weredeliberations.between PW1 <3: PW4 before first inlorniatioii existence. On 25.06.1997, PWI was " aware that"1acc'used has submitted his report to the to issue" Survival Certificate as prayed by the I In the circumstances, PW} was aware that ac_cused_gwas not competent to issue Survival Certificate. AA Pwlvhad no official favour to seek lrom accused. so also * accused had no official favour to discharge in favour of PW}. The evidence led by prosecution in proof of demand and acceptance of bribe, all along accused was hol 'Eng tainted
--- 20 currency notes in his right hand as if he were waiting for Lokayukta Police to come and trap him is too artifi'c"ia§.A'
20. On reappreciation of evidence, I Judge has properly appreciated eixdzidedit-_ce:4AQr1.: ' acquitted accused of aforestafied offences. Iecfudnof find"
grounds to interfere impugned jddgment; Accordingly, the appee1i*~.iAs _ judgée SNN