Karnataka High Court
Shivanna vs The State By Police Inspector, on 17 January, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.1023/2013
BETWEEN:
Shivanna
Junior Assistant
(Water Meter Reader)
Office of the Assistant Executive Engineer
Bangalore Water Supply and Sewerage Board
2nd Sub-Division
Malleshwaram
Bangalore
R/at No.307, Masjid Block
Mariyappanapalya
Bangalore-560 021. .. APPELLANT
(By Sri S G Bhagavan, Adv.)
AND:
The State by Police Inspector
City Division
Karnataka Lokayukta
Bangalore-560 001. .. RESPONDENT
(By Sri Venkatesh S Arbatti, Spl.P.P.)
2
This criminal appeal is filed under 374(2) Cr.P.C
praying to set aside the judgment and order of conviction
and sentence dated 30.09.2013 passed by the Spl. Judge,
Prevention of Corruption Act, Bangalore Urban District,
Bangalore City in Spl.C.C.No.62/2008 - convicting the
appellant-accused for the offences punishable under
Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption
Act, 1988.
This appeal having been heard and reserved for
judgment, coming on for pronouncement of judgment this
day, the Court delivered the following:
JUDGMENT
The judgment and order of conviction dated 30.9.2013 passed by the Special Judge, Bengaluru Urban District, Bengaluru City in Spl.C.C. No.62/2008 is challenged in this appeal by the appellant accused. By the said judgment and order of conviction, the trial Court convicted the appellant accused for the offences punishable under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988.
2. Brief facts of the prosecution case as per the complaint averments in Ex.P.6 is that Hameed Khan (P.W.3) 3 lodged a complaint on 11.7.2000 before the Deputy Superintendent of Police, City Division, Karnataka Lokayuktha, Bengaluru, wherein it was stated that there was water connection by Bangalore Water Supply and Sewerage Board (for short 'BWSSB') to the residential house of the complainant. Earlier, the water charges were Rs.73/- or Rs.77/-. As the meter was damaged, the minimum bill amount of Rs.265/- used to be collected and there afterwards, BWSSB authorities fixed the new meter by collecting Rs.550/-. The complainant stated that for the month of April 2000, bill amount of Rs.1,548/- and for the month of May 2000, bill amount of Rs.3366/- were collected from him. Out of the same, he has paid Rs.1700/- to BWSSB. There afterwards, the complainant met the appellant accused Shivanna and enquired as to why there was so much of water bill. Shivanna told that from the following month, they will put the bill amount of Rs.12,000/- and asked the complainant to meet inspector Muddegowda. Accordingly, the complainant met the BWSSB inspector and 4 when enquired about increase in the bill, the inspector told the complainant that he has to pay Rs.8,000/- to the inspector and the meter reader Shivanna i.e. the accused and then they will correct the water meter to get the bill of Rs.75/- as getting earlier otherwise, they will put the bill amount of Rs.12,000/-. The accused Shivanna and Muddegowda told the same to the complainant for that the complainant told that it is not possible for him to pay the said amount. The accused Shivanna and Muddegowda told the complainant that out of the amount to be paid by him, they have to pay some amount to the Assistant Engineer also. The accused Shivanna and Muddegowda both told the complainant that on 11.7.2000, the complainant has to bring Rs.4,000/- and to pay them in their office at Jayamahal. Out of the said two persons, he can pay the amount to any one in the said office. But the complainant was not interested in getting the work done by giving the bribe amount. Hence, he lodged the complaint requesting the Lokayuktha office to take action against the accused 5 Shivanna in accordance with law. The complaint was received in Lokayuktha office on 11.7.2000 at 10.30 a.m. and registered FIR in LA Crime No.18/2000 for the said offence.
3. Thereafter, the trap of the appellant accused (Shivanna) was conducted by the Lokayuktha police and the amount was recovered from the possession of the appellant accused. Then the matter was investigated by the police inspector and after completion of the investigation, the police inspector filed charge sheet against the appellant accused for the said offences. It is mentioned in the charge sheet that as no evidence was available against the inspector Muddegowda, he was not sent up for trial.
4. Before framing the charge sheet, regarding sanction, the Special Court passed an order dated 25.4.2005 in Spl.C.C. No.515/2002 and held that the sanction order was invalid and not in accordance with law. However, liberty 6 was given to the prosecuting agency to take back the charge sheet materials (except FIR) and place it before the competent authority and to prosecute the accused on the same accusation after obtaining the proper sanction. Another sanction order was obtained as per Ex.P.4. After hearing both sides, the Special Court framed the charges against the appellant accused for the above said offences. As the appellant accused pleaded not guilty, the trial was conducted against him.
5. The prosecution examined in all five witnesses as P.Ws.1 to 5 and got marked the documents Exs.P.1 to P.16 and the materials objects M.Os.1 to 8. On the side of the defence, D.W.1 was examined and the documents Exs.D.1 to 7 were got marked.
6. After hearing the arguments and considering the merits of the matter, the trial Court convicted the appellant accused for the said offence. Being aggrieved by the 7 judgment and order of conviction, the appellant accused has challenged the legality and correctness of the same on the grounds as mentioned in the memorandum of appeal.
7. I have heard learned Counsel for the appellant accused and learned SPP for the respondent State.
8. Learned Counsel for the appellant accused during the course of the arguments made submission that the earlier sanction order produced by the prosecution was held by the Special Court as invalid and not in accordance with law. Even with regard to the subsequent sanction order obtained by the prosecution, it is also not in accordance with law and it is against the mandatory requirements of Section 19 of the Prevention of Corruption Act (for short the 'Act'). The learned Counsel submitted that looking to the oral evidence of P.W.2, in her oral evidence, P.W.2 has deposed that the Board, in its meeting dated 17.10.2007, after detailed discussion and deliberation, accorded sanction 8 under Section 19 of the Act. As per the decision of the Board, P.W.2, as the Chairperson of the Board has accorded sanction on 12.11.2007. The learned Counsel drew the attention of this Court to para 5 of deposition of P.W.2 and made submission that under Section 12 of Bangalore Water Supply and Sewerage Board Act, 1964 (for short 'the BWSSB Act), the Board is the competent authority for issue of the sanction order and even according to the evidence of P.W.2, BWSSB is the competent authority to issue the sanction order. In this connection, the learned Counsel made submission that as per the decision of the Division Bench of this Court in case of BANGALORE WATER SUPPLY AND SEWERAGE BOARD Vs. T.K. PUTTAWSWAMY GOWDA reported in ILR 1993 KAR 278, the Chairman of the Board is the competent authority. Therefore, the sanction order said to have been issued by the Board is invalid and not in accordance with law.
9The learned Counsel has submitted that the sanction order is without application of mind and it is not sustainable in law. It is also submitted that when the earlier sanction order has been held as invalid and not in accordance with law, the Spl.Judge ought not to have directed the prosecution agency to place those materials and to obtain fresh sanction order and to prosecute the appellant-accused. The said direction of the Spl.Judge itself is illegal and not in accordance with law, hence, on that ground itself the Spl.Judge ought to have discharged the accused, even on second time ought not to have proceeded with the trial of the case on such invalid sanction.
With regard to the merits of the case is concerned, it is the contention of the learned Counsel for the appellant- accused that the water meter is standing in the name of Amanualla Khan, the father of the complainant. Amanulla 10 Khan, is also not examined in the case, which is fatal to the prosecution. He has submitted that the complainant Hameed Khan is not having locus-standi to file the complaint as the water meter was not standing in his name. It is also submitted that prosecution has not established that there was a demand by the appellant-accused for the payment of bribe amount to show any official favour. Regarding the aspects as to when the bribe amount was demanded i.e., the date, time and place, is also not specifically made out by the prosecution and in the absence of the same, it cannot be said that there is material placed by the prosecution for the demand of bribe amount. Hence, he has submitted that when the demand for bribe amount itself is not established with satisfactory material, mere recovery of currency notes from the possession of the appellant-accused will not be sufficient to prove the charges leveled against him. He has further submitted that it was not the only duty of the appellant-accused to read the water meters, but he use to collect the water charges, hence, he has submitted that, 11 whatever the amount that was recovered from the possession of the appellant-accused on the said day is not the bribe amount and it was the amount collected towards the water charges.
As per the case of prosecution, the reason for the appellant-accused to demand bribe amount is that he is going to reduce the water charges, but, the learned Counsel has submitted that the appellant-accused was not authorized by the Board either to increase or to reduce the water charges and hence, the appellant-accused was not in a position to show any official favour to the complainant in connection with the water charges. Therefore, when the appellant-accused was not having any such authority, the question of making the demand for bribe amount does not arise at all. Looking to the oral as well as the documentary evidence produced on the side of the prosecution, they will not make out a case for the alleged offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988. He has also submitted 12 that Regulation No.30 and Regulation No.88(f) of BWSS Act, also made it clear that no offence has been committed by the appellant-accused and there is a false implication of the appellant-accused. He has also submitted that there is no acceptable evidence even with regard to the place at which demand for bribe amount is made and the place at which the bribe amount was collected by the appellant-accused from the complainant. He has further submitted that when the accused was asked to submit his say in the matter, he has given in writing, which is marked as Ex.P-9 and all those material aspects were not properly appreciated by the trial Court. The entire evidence i.e., both oral and documentary, were wrongly read by the trial Court and wrongly proceeded to convict the appellant-accused. He has also submitted that in the departmental enquiry initiated against the appellant-accused, he was exonerated from the charges. He has also submitted that the judgment and order of conviction passed by the trial Court are not in accordance with the materials placed on record. The prosecution utterly 13 failed to prove its case beyond all reasonable doubt. Learned Counsel has also submitted that the Spl. Judge was not serious in framing the questionnaire while examining the appellant-accused under Section 313 of Cr.P.C. and the Spl. Judge was casual in his approach while framing the questionnaires. In this connection learned Counsel drew the attention of this Court to the judgment and order passed by the trial Court and submitted that though the appellant- accused has been examined as D.W.1, but in the judgment it has been observed as no evidence was placed on behalf of the appellant-accused. Therefore, he has submitted that the judgment and order of conviction passed by the trial Court suffers from serious infirmity and hence, submitted to allow the appeal and to set-aside the judgment and order of conviction and to acquit the appellant-accused.
In support of his contentions, learned Counsel for the appellant-accused has relied upon the following decisions: 14
i. 2016 Crl. L.J. 3066 (R. Srinivasan and
Another Vs. State by Police Inspector,
Lokayukta, Bangalore)
ii. 2015 (1) KCCR 898 (N.A. Suryanarayana
Alias Suri Vs. State by Inspector of Police, CBI/SPE, Bangalore) iii. (2010) 2 SCC (Crl.) 385 State of Maharashtra Vs. Dhyaneshwar) iv. 2015 AIR SCW 784 (Sanjaysinh Ramrao Chavan Vs. Dattatray Gulab Rao Phalke and Others) v. 2015 AIR SCW 4432 (Nanjappa Vs. State of Karnataka) vi. (2005) 8 SCC 130 (State of Goa Vs. Babu Thomas) vii. 1993 (1) Kar. L.J. 122 (Bangalore Water Supply and Sewerage Board, Bangalore Vs. Dr. T.K. Puttaswamy Gowda) viii. AIR 2005 SC 3606 (State of Goa Vs. Babu Thomas)
9. Per contra, learned Spl. Public Prosecutor for the respondent-State submitted that so far the first sanction order is concerned, it is no doubt true the learned Spl.Judge has passed the order holding that it is invalid and not in accordance with law, however, liberty was given to the prosecution to obtain the fresh sanction order and then to prosecute the accused. Accordingly, fresh sanction order was obtained and produced in the case.
15
Regarding the authority, who is competent to pass the sanction order is concerned, learned Spl. Public Prosecutor has submitted that it is the Board, which is competent authority, and not the Chairman of the Board in his individual capacity to issue the sanction order. In this connection, he has submitted that the said aspect is clearly mentioned that the Board is the competent authority to issue the sanction order. Learned Spl.P.P. drew the attention of the Court to the decision of Division Bench relied upon by the learned Counsel for the appellant and submitted that in paragraph Nos.8, 9 and 15 of the said decision, it is clearly held that it is the Bangalore Water Supply and Sewerage Board, which is competent to issue the sanction order. Hence, he has submitted that the sanction order issued by the Board and which is signed by the Chairman of the Board, representing and on behalf of the Board, is valid sanction order and it is in compliance of requirements of Section 19 of the Prevention of Corruption Act. At this stage, he has also drew the attention of this Court to Section 19(3) 16 of the said Act and submitted that when all such contentions regarding the validity of the sanction order were not raised before the trial Court, now the appellant cannot canvass those aspects before this Court and even if it is held that there are some omissions or commissions in the sanction order that itself is not a ground to set-aside the sanction order or to disbelieve the case of the prosecution.
Regarding the demand and acceptance of the bribe amount is concerned, he has submitted that the averments in the complaint Ex.P-6, oral evidence of Hameed Khan/complainant (P.W.3) and oral evidence of P.W.4 the shadow witness, so also the documents i.e., entrustment mahazar Ex.P-8 and trap mahazar Ex.P-10, clearly establishes the case of the prosecution that there was demand and acceptance of the bribe amount. He has further submitted that even the chemical test conducted by the I.O. and when the hand wash of the appellant-accused was taken in the solution containing phenolphthalein powder and sodium carbonate solution, they turned into pink colour and 17 also there is report from the laboratory as per Ex.P-15. He has also submitted that the prosecution established the fact of recovery of the currency notes from the possession of the appellant-accused, which fact is not denied by the appellant- accused. It is also submitted that the explanation offered by the appellant-accused as per Ex.P-9 was not at all established with cogent material. Hence, he has submitted that the trial Court considered all these aspects properly and after appreciating oral and documentary evidence, rightly came to the conclusion in convicting the appellant-accused. Therefore, he has submitted that there is no illegality in the judgment and order of conviction passed by the trial Court and hence, he has submitted that as there is no merit in this appeal, same is to be dismissed.
In support of his arguments, learned Spl.PP has relied upon the following decisions produced along with the list of citations with brief notes dated 06.01.2017:
i. AIR 2015 SC 3060 (State of Karnataka Vs. T Nanjappa) 18 ii. AIR 2004 SC 5117 (State by Police Inspector Vs. T Venkatesh Murthy) iii. AIR 2005 SC 3606 (State of Goa Vs. Babu Thomas) iv. AIR 2012 SCC 685 (State (NCT of Delhi) Vs. Ajay Kumar Tyagi) v. AIR 2014 SC 1674 (State of Bihar Vs. Raj Mangal Ram) vi. AIR 2011 SC 1363 (Ashoka Tshering Bhutia Vs. State of Sikkim vii. AIR 1962 SC 195 (Dhaneshware Narain Saxena Vs. The Delhi Administration (Constitutional Bench) viii. Crl. R.P.2000/2014 (Ranganath Vs. State of Karnataka) ix. AIR 2014 SC 1256 (Phula Singh Vs. State of Himachal Pradesh) x. AIR 2001 SC 318 (M. Narsing Rao Vs. State of Andhra Pradesh)
10. I have perused the grounds urged in the appeal memorandum, the oral evidence of P.Ws.1 to 5, D.W.1, documents at Exs.P.1 to P.16 and Exs.D.1 to D.7, perused the judgment and order of conviction passed by the trial Court, the decisions relied upon by both sides, which are 19 referred above and also considered the submissions made at Bar by both sides.
11. The first and the foremost contention of learned Counsel for the appellant accused is that the sanction order under Ex.P.4 is invalid and it is not in accordance with law. I have perused the order dated 25.4.2005 passed by the Special Judge in Spl. C.C. No.515/2002. Looking to the said order, it goes to show that when the charges were framed and the matter was set out for evidence, learned Counsel for the appellant moved a memo before the trial Court challenging the validity of the sanction order. It was the contention before the said Court that the earlier sanction issued by the Chairman of BWSSB is invalid and the Chairman himself in his individual capacity cannot issue such sanction order. The trial Court after considering the materials so also referring to Section 12 of the BWSSB Act, came to the conclusion that as per the said provision, it is the Board which is the competent authority to issue the 20 sanction order and not the Chairman of the said Board. Accordingly, the earlier sanction order held as invalid and not enforceable in law. However, liberty was given to the prosecution to take back charge sheet material (except FIR) and to obtain fresh sanction order and then to persecute the accused. Accordingly, the prosecution again obtained sanction order as per Ex.P.4. Now it is the sanction order that is challenged on the ground that it is issued mechanically without application of mind and the Board is not the competent authority and it is the Chairman of the Board who is the competent authority and the materials were not at all properly considered while issuing the sanction order. Hence, there is no compliance of the mandatory requirements of Section 19 of the PC Act. When in the earlier proceedings, it was contended by the accused that the Chairman was not the competent authority and it was the Board which was competent to issue sanction order, strange enough, the subsequent sanction order is challenged on the ground that it is the Chairman, who is the competent 21 authority, and not the Board. In this connection, I have perused Section 12 of the BWSSB Act, 1964, which clearly goes to show that it is the Board which is competent for issue of the sanction order and the Chairman is not competent to issue the sanction order in his individual capacity.
12. I have also perused the decision relied upon by learned Counsel for the appellant reported in ILR 1993 KAR 278 (T.K. Puttawswamy Gowda' case). Perusing the said decision, more particularly para Nos.8, 9 and 15, it is clear that the Board is the competent authority to issue the sanction order. Therefore, the contention of the learned Counsel for the appellant-accused that the Board is not competent to issue the sanction order at Ex.P.4 cannot be accepted at all.
13. Apart from that, I have also perused the oral evidence of P.W.2 Smt. Latha Krishnarao. In her evidence, 22 P.W.2 has clearly deposed that the Board in its meeting of 17.10.2007, after detailed discussion and deliberation, accorded sanction under Section 19 of the PC Act. P.W.2 has further deposed that as per the decision of the Board, as the Chairman of the BWSSB, she accorded sanction on 12.11.2007. In para No.5 of her deposition, P.W.2 has made it clear that under Section 12 of the BWSSB Act, 1964, the Board is the competent authority for issue of sanction order. Even looking to the cross examination of P.W.2 by defence, except making the suggestion that the Board is not the competent authority, there is no other serious challenge into the evidence of P.W.2. In this connection, I have perused the decisions relied upon by the Spl.P.P. referred above. The prosecution was able to establish that the sanction order issued is valid and is in accordance with requirement of section 19 of the PC Act. The evidence of P.W.2 also makes it clear that before issuing the sanction order, the Board has considered the materials placed on record as deposed by P.W.2 in her evidence. Looking to the 23 cross examination of P.W.2, the defence was not able to establish any error in obtaining the sanction order and what is the prejudice caused to the appellant/accused. The materials on record show that the Board, after considering the entire materials, applied its mind and issued the sanction order. Not only that, looking to the materials placed, the trial Court, more particularly, the evidence of P.W.2, there is no serious challenge to the validity of the sanction order (Ex.P.4). Under such circumstances, it cannot be said that the sanction order (Ex.P.4) is invalid and not in accordance with law.
14. Referring to the contention of the learned Counsel for the appellant accused that while passing the order on the earlier sanction dated 25.4.2005, the trial Court gave a direction to the sanctioning authority to issue a fresh sanction and hence, on that ground, the subsequent sanction order (Ex.P.4) is invalid, is concerned, I have perused two decisions relied upon by the learned Counsel for 24 the appellant accused in case of SANJAYSINH RAMRAO CHAVAN VS. DATTATRAY GULABRAO PHALKE AND OTHERS reported in 2015 AIR SCW 784 and NANJAPPA VS. STATE OF KARNATAKA reported in 2015 AIR SCW 4432.
In Sanjaysinh Ramrao Chavan's case (supra), at para No.18, it is observed by the Hon'ble Apex Court as under:
" 18. xxxx xxxx xxxx "32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious 25 particularly as it was in the knowledge of Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract.
The discretion not to sanction the
prosecution was thus taken away by the
High Court."
In Nanjappa's case (Supra), the Hon'ble Apex Court has observed as under:
21. The next question then is whether we should, while allowing this appeal, set aside the order passed by the High Court and permit the launch of a fresh prosecution against the appellant, at this distant point of time. The incident in question occurred on 24th March, 1998. The appellant was, at that point of time, around 38 years old. The appellant is today a senior citizen. Putting the clock back at this stage when the prosecution witnesses themselves may not be available, will in our opinion, serve no purpose. That apart, the trial 26 Court had, even upon appreciation of the evidence, although it was not required to do so, given its finding on the validity of the sanction, and had held that the prosecution case was doubtful, rejecting the prosecution story. It will, therefore, serve no purpose to resume the proceedings over and again. We do not, at any rate, see any compelling reason for directing a fresh trial at this distant point of time in a case of this nature involving a bribe of Rs.500/-, for which the appellant has already suffered the ignominy of a trial, conviction and a jail term no matter for a short while. We, accordingly, allow this appeal and set aside the order passed by the High Court.
15. Looking to the aforesaid two decisions and the observations made therein by the Hon'ble Apex Court, the said decisions will not come to the aid and assistance of the defence in contending that the sanction order is invalid. In the order dated 25.4.2005 passed by the Special Judge in 27 Spl.C.C. No.515/2002, the Special Judge has not at all directed the sanctioning authority to issue the sanction order. The Special Judge has passed the order stating that the sanction is invalid and not in accordance with law and consequently, the accused was discharged for time being reserving liberty to the prosecution agency to take back the charge sheet papers, place them before the competent authority and prosecute the accused on the same accusation after obtaining the proper sanction. Therefore, no fault can be found with the order of the learned Special Judge while passing the said order. Therefore, considering the materials placed on record by both sides, I am of the opinion that the sanction order under Ex.P.4 is valid one.
16. Coming to the other merits of the case, looking to the charges leveled against the appellant accused that he demanded the bribe amount of Rs.4,000/- to do the official 28 favour to the complainant (P.W.3) is concerned, let me examine the materials placed on record, both oral and documentary, to ascertain as to whether the prosecution was able to establish satisfactorily that the appellant accused demanded the bribe amount from the complainant to do the official favour in respect of the work of the complainant pending with the appellant accused. I have perused the complaint (Ex.P.6) wherein it is alleged that as the water charges for the months of April and May were Rs.1,548/- and Rs.3,366/- respectively, the complainant met the appellant accused and enquired as to why there is so much of water bill, as earlier it was only Rs.73/- or Rs.77/- per month. The appellant accused asked the complainant to meet Muddegowda and accordingly, he met Muddegowda. At that time, the said Muddegowda told the complainant to give Rs.8,000/- to them. Then they will refix the bill to Rs.75/- 29 per month as it was earlier. Other wise, the next bill would be Rs.12,000/-. It is further alleged in the complaint that both the appellant accused and Muddgegowda told the complainant about the bribe amount and when the complainant pleaded his inability to pay that much huge money, then they asked him to pay Rs.4,000/- by 11.7.2000 in their office or chambers.
I have also perused the entrustment mahazar (Ex.P.8) wherein also the contents of Ex.P.6 are reiterated.
17. Coming to the oral evidence of the complainant (P.W.3), he has deposed about the averments that he has made in the complaint regarding the demand for the bribe amount by the appellant accused. I have also perused the evidence of Sri S. Mahantesh (P.W.4), who is shadow witness as per the case of prosecution and who was asked to accompany the complainant to the office of the accused and to observe the things that have happened between the complainant and the accused. P.W.4, in the examination in 30 chief, has supported the case of prosecution saying that himself and the complainant met the appellant accused at about 3.00 p.m. on 11.7.2000 near BWSSB office at 16th Cross, Malleswaram. They saw the appellant accused coming to the office after having lunch on the way, it is near to the BWSSB office. When both P.Ws.3 and 4 were present, P.W.3 enquired about his work and the appellant accused, in turn, told that his work would be done. But the appellant accused asked the complainant whether he has brought the amount as told by him. For that, the complainant said that he has brought the amount of Rs.4,000/- i.e., 8 currency notes each at the denomination of Rs.500/-. The further evidence of P.W.4 also goes to show that the appellant accused received the said amount and immediately thereafter, the pre-arranged signal was given by the complainant to the Lokayuktha police and the Lokayuktha inspector and the other staff came and caught hold the hands of the appellant. It is the further evidence of P.W.4 that thereafter, the hand wash of both hands i.e., left and 31 right hand of the accused were taken in the sodium carbonate solution separately and the solution turned into pink colour. In this regard, the prosecution has also relied upon the document Ex.P.15 i.e., the report from the laboratory. Basing on these materials, the prosecution is contending that the demand for the bribe amount has been satisfactorily established by the prosecution and the amount was also seized from the possession of the appellant accused and accordingly, the case of demand and acceptance of the bribe amount has been proved by them satisfactorily. Hence, the prosecution submitted that the trial Court has taken these aspects into consideration and rightly came to the conclusion that the prosecution has proved its case beyond reasonable doubt.
But looking to the cross-examination of the complainant (P.W.3) and the shadow witness (P.W.4) so also the documents produced by the defence got marked in D- series during the course of cross examination of P.Ws.3 and
4. They are the materials to be appreciated by this Court. It 32 is an admitted fact that even according to the prosecution that there was departmental enquiry held by the department as against the appellant herein and also Muddegowda. The enquiring authority, in the said departmental proceedings, after recording the evidence and considering the other materials produced, ultimately came to the conclusion that the complainant failed to establish the charges leveled against the delinquent officials and accordingly, exonerated the delinquent officials from the charges.
18. It is true that the learned Spl.P.P. during the course of arguments submitted that the departmental proceedings are totally different and there is no bar for initiating the criminal proceedings against the appellant accused. Only because the appellant has been exonerated from the charges before the enquiring authority, automatically, it cannot be treated that even in the criminal proceedings also, he is entitled for acquittal. Both are independent proceedings and the Court has to appreciate 33 the materials produced in the criminal case independently. In this regard, the learned Spl.P.P. has relied upon the decisions referred above. I have perused the principles enunciated in the said decisions. The legal position cannot be disputed by anybody. But, in the enquiry proceedings, the evidence of the complainant, shadow witness and the other witnesses were recorded on oath. The certified copies of the said depositions are produced in the D-series. Those depositions are the relevant materials to be considered by this Court while appreciating this case. Looking to the cross examination of the complainant (P.W.3), he has clearly admitted that earlier, the water meter was for non-domestic purpose and he made an application before the authorities requesting to convert it for domestic purpose. Even in the evidence, the complainant has deposed that for the month of May, the water bill was for Rs.3,366/- and he was aware that the bill was huge for the month of May and he had to pay it. His evidence adduced before the departmental enquiry officer also goes to show that he has clearly admitted 34 that he gave Rs.4,000 /- into the hands of the appellant accused for the payment of water bill of Rs.3,366/- asking him to pay the same to Sri. Muddegowda, Water Inspector. In this connection, I have perused Ex.D.2, deposition of the complainant before the enquiring officer. On page No.4 of the deposition dated 26.11.2007, it goes to show that the complainant went to the office and enquired as to where is Muddegowda. They told that Muddegowda has not come and when it was told that Muddegowda has not come, the complainant referring to the appellant herein that he has to pay the arrears, gave the amount into the hands of the appellant asking him to give it to Muddegowda. The complainant (P.W.3), before the enquiry officer, has also admitted that he has stated so to the appellant (Shivanna). So these materials clearly show that the amount that he has given to the appellant herein is not the bribe amount. But it is the amount of the water bill for the month of May. He further admitted that for the bill amount of Rs.3,366/-, he paid Rs.4,000/- into the hands of the appellant accused 35 stating to the appellant accused that as Muddegowda was not present in the office, requested the appellant accused to pay the same to Muddegowda. The bill amounting to Rs.3,366/- for the month of May is produced as per Ex.D.3. The evidence of the complainant (P.W.3) before the Trial Court also goes to show that he was knowing that the bill amounting Rs.3,366/- was for the month of May and he had to pay the same. Therefore, it is clear that the amount said to have been received by the appellant accused is not the bribe amount, but it is the amount of water bill for the month of May. Even the other materials by way of oral and documentary evidence probabalise the defence of the accused so also the explanation offered as per Ex.P.9. Looking to the complaint averments and the oral evidence of P.Ws.3 and 4, so also the entrustment Mahazar (Ex.P.8), they go to show that firstly, the complainant went to the appellant accused to enquire about the bill, and at that time, the appellant accused asked him to come to Muddegowda and then he went to Muddegowda. At the time, both 36 Muddegowda and the appellant-accused asked the complainant to pay Rs.8,000/- and then it was brought down to Rs.4000/- to be paid on 11.07.2000. So, looking to these materials, there is no reference by name Manchegowda that he was also present with the appellant and Muddegowda and all of them demanded for the said amount. In the oral evidence of P.W.1 before the enquiring authority dated 06.08.2007, on page No.5, he has deposed that he had been to the head office. Then after parking the vehicle from at distance, himself and Mahantesh had been to the said head office. But it was lunch time. They enquired as to the JE has come and also enquired whether Manchegowda, Muddegowda and appellant had come there for which the staff informed him that it was lunch time. They have not yet come. Then himself and Mahantesh were sitting beneath the tamarind tree. At about 02:45 or 3:00 p.m., the appellant accused (Shivanna) came there and the complainant enquired about Manchegowda and Muddegowda. He informed them that they have not come. He has also 37 enquired with the appellant (Shivanna) as to whether his work was done, for which Shivanna said that he will get the work done. But he had asked whether he had brought the money as they had informed him to that effect. So this evidence of the complainant before the enquiring authority at Lokayuktha clearly indicates that according to the complainant, the amount was demanded by all the aforesaid three persons. But looking to the complaint, oral evidence of P.Ws.3 and 4 before the Trial Court and the contents of entrustment Mahazar (Ex.P.8), they are all silent about the allegation that Manchegowda, the Assistant Engineer was there with the appellant and Muddegowda. It is also one of the important aspects to be taken into consideration in assessing the case of prosecution whether really the prosecution has placed the cogent and acceptable material before the trial Court to establish the allegation of demand for the bribe amount.
38
19. It is true that as per the contentions of the prosecution and as per the decisions relied upon by the learned Spl.P.P. that even if no work is pending with the appellant to do any favour to the complainant and even then if it is assumed that he received the amount not for himself but on behalf of Muddegowda, but that will not help the appellant in disproving the case of prosecution. I have perused the decisions of the Hon'ble Apex Court relied upon by the learned Spl.P.P. referred above. Though the legal position is as submitted by the learned Spl.P.P., but until and unless, it is established by the prosecution satisfactorily that there was demand for the bribe amount by the appellant accused, the said decisions will not come to the aid and assistance of the prosecution case.
20. As per the case of prosecution, immediately after the trap proceedings and after taking hand wash of the appellant accused in the solution and seizing of the amount from the possession of the appellant accused, the appellant 39 was asked to submit his explanation about the same. He offered his explanation as per Ex.P.9 dated 11.07.2000. Perusal of the document Ex.P.9, its contents would show that before the appellant accused reached the office, the consumer of R.R.No.25619-35-3 came in middle, spoke to him and took him to the canteen to have coffee. In the mean while, the consumer gave Rs.4,000/- into his hands and requested him to credit the same to his account towards the bill amount due and also asked the accused to credit the remaining amount for the month of July, which he has to pay the amount. This explanation offered by the accused goes to show that it is the complainant himself who came at the said place, gave Rs.4,000/- into the hands of the appellant accused for the payment of due amount.
21. I have also perused the statement under Section 313 of Cr.P.C. under which the appellant accused has been examined and the Court put questions regarding the incriminating materials and recorded the answers given by 40 the appellant accused. Looking to question No.58, the appellant was asked "have you got anything to say". The appellant accused answered, they were constructing the house and the bill amount for non-domestic arrears was given to him. During the course of the proceedings before the Trial Court, the appellant accused was examined as D.W.1 and his evidence was recorded on 17.09.2013. In his evidence, D.W.1 has deposed that in the departmental enquiry proceedings, he has been exonerated. So looking to the answers given by the accused, when he was examined under Section 313 of Cr.P.C., he answered to the question that the bill amount for the non-domestic arrears was given to his hands. So looking to the answer to question No.58 so also the explanation offered under Ex.P.9 and the admission of D.W.1 before departmental enquiry officer which I have already referred above, all these materials, go to show that it is the complainant himself who gave the said amount into the hands of the appellant accused asking him to adjust the 41 said amount towards the arrears of the bill amount for non domestic use.
22. So far as the defence of the appellant accused is concerned, he need not prove the defence beyond all reasonable doubt. He can show preponderance of probabilities, that is sufficient.
23. It is true that looking to chemical examiners report (Ex.P.15), on page No.2 in the opinion column, it is mentioned that the presence of phenolphthalein is detected in both hand wash of the AGO.
24. With regard to this, let me consider the materials placed before the trial Court to know as to whether it is consistent or not.
The contents of Ex.P10, the Trap mahazar are to the effect that the Investigating Officer introduced the panchas and the officials of the Lokayuktha to the accused. The 42 Investigation Officer enquired the name and other details of the accused person, for which, he told his name as Shivanna. As per the direction of the investigation Officer, P.C.Vishakantappa prepared the sodium carbonate solution in two bowls. The Investigating Officer asked the accused as to what is in his hand, for which, accused replied that it is money. Then the Investigating officer asked the accused to hand over the said amount to the witnesses. Accordingly, the appellant-accused gave the amount to the hands of Narayanappa. Thereafter, as per the instructions of the Investigating Officer, both the panchas verified the amount and it was totally amounting to Rs.4,000/- containing 8 currency notes of Rs.500/- denomination each. The numbers on the said notes were tallying with the numbers mentioned in the entrustment mahazar in the lokayuktha office. The right hand wash of appellant-accused was taken in a bowl containing sodium carbonate solution, which turned into pink colour and the same was collected in a bottle and was sealed and labeled as M.O.6. Then, the left 43 hand wash was taken in another bowl containing the solution, which also turned into pink colour and the same was also collected and sealed in a bottle and marked as M.O.7. It is not specifically mentioned in Ex.P10 as to in which hand the accused was holding the amount or he exchanged the money to both the hands by counting etc., But the contents simply shows that he was having the money and being asked to hand over, he handed over the same to the witness Narayanappa.
25. It is the case of the prosecution that Ex.P10 trap mahazar bears the factual narration as to what has happened during the course of trap proceedings and that complainant P.W.3 and shadow witness P.W.4 were also present during the trap mahazar proceedings. But as per the oral evidence of the complainant himself, in his examination-in-chief at paragraph No.11 he has deposed that accused took the bribe amount in his right hand and counted it. Further in paragraph No.12 he has deposed that 44 in a bowl containing sodium carbonate solution both the hands of the accused Shivanna were washed and the same turned into pink colour and it was collected in a bottle and sealed. Before washing the hands of accused Shivanna, the currency notes which were in the possession of Shivanna were seized. This evidence of P.W.3 complainant is against his own statement given before the Investigating Officer as per Ex.P11. The Special Public Prosecutor with the permission of the Court made a specific suggestion to P.W.3 that he is deposing falsely that the hand wash of the accused was taken in a single bowl and suggested that hand wash of both the hands was taken in two separate bowls, which suggestion has been denied by P.W.3, the complainant. This statement of the complainant makes it clear that hand wash of the accused was taken in a single bowl and not in two separate bowls as mentioned in Ex.P10, trap mahazar.
26. The oral evidence of P.W.4, shadow witness, is to the effect that accused asked the complainant as to whether 45 he has brought money for which, complainant replied yes and gave the money. The accused received it in right hand and transferred it to the left hand saying he would do the work. The numbers of the said currency notes tallied with Ex.P7. A solution was prepared on the instructions of the lokayuktha police and sample was preserved in a bottle as per M.O.5. In the remaining solution right hand and left hand of the accused were washed separately in separate bowls and the solution turned into pink colour and the coloured solution were seized and sealed in bottle as per M.Os.6 and 7.
It is seen that there is no consistency with regard to the averments made in Ex.P.10 trap mahazar and the oral evidence of P.Ws. 3 and 4. As already noticed by the Court, as per the evidence of P.W.3, accused received the amount by right hand and counted it, whereas, the evidence of P.W.4 shows that accused received the amount through his right hand and transferred it to the left hand. There is inconsistency even with regard to the evidence of P.Ws.3 and 46
4. If really, the accused had received the amount in his right hand and then transferred it to the left hand by counting or even otherwise, same could have been specifically mentioned in EX.P.10 trap mahazar, which is silent about these material aspects. Apart from that, the evidence of P.W.3 complainant that hand wash of both the hands was taken in a single bowl is again contrary to the report at Ex.P.15, which raises a serious doubt about the case of the prosecution. Hence, I am of the opinion that no importance can be given to Ex.P.15, the Chemical Examiner's report and it will not come to the aid and assistance of the prosecution in proving the allegation of demand and acceptance of the tainted currency notes, smeared with phenolphthalein powder.
27. The evidence of the complainant before the Departmental Enquiry Officer, so also before the trial court goes to show that he does not know Kannada language and he knows only Urdu and English. But the complaint Ex.P.6 47 is in Kannada. In Ex.P.6, there is an endorsement at the end as "received the complaint on 11.07.2000 at 10.15 hours and forwarded to Sri. Md. Khalander P.I. to register a case and investigate". The oral evidence of P.W.3 complainant is to the effect that Khalander, Police Inspector himself prepared the complaint. But in the complaint there is no endorsement of the person receiving the complaint and as to in whose presence the complaint was prepared and that in which language. The said police inspector Khalander himself is the Investigating Officer in this case. But when the evidence was recorded before the trial Court, it is reported that he is dead. Therefore, prosecution was not able to examine him before the Court. Only the other police officer P.W.5 namely, Prasanna V Raju has been examined, who has deposed that Khalander is no more. In view of the evidence of the complainant and his very admission before the Lokayuktha Enquiry Officer in the departmental proceedings that he asked for Muddegowda for which Shivanna told that Muddegowda has not yet come and then 48 he told Shivanna that he has to pay the arrears of bill and gave Rs.4,000/- into his hands asking Shivanna to give it Muddegowda, serious and reasonable doubt arises as to whether really the complainant has made such allegations in his complaint or it is got prepared by the Police Inspector Khalander himself taking undue advantage of complainant not knowing the Kannada Language.
28. Considering all these aspects discussed above, I am of the opinion that the evidence adduced by the prosecution is not cogent, consistent and worth believable. Reasonable doubt arises as to the case of the prosecution that the appellant demanded and accepted the bribe amount. These material aspects are not properly appreciated by the Court below and the trial Court has wrongly read both oral and documentary evidence and has come to a wrong conclusion in convicting the appellant. In view of my above discussions and also the oral and documentary evidence placed on record, I am also of the 49 opinion that the facts and circumstances involved in the judgments relied upon by the learned Special Public Prosecution on the aspect of demand and acceptance of bribe amount are different and are not applicable to the case on hand. The judgment and order of conviction passed by the trial Court is not only illegal but also perverse and capricious. Hence, it cannot be said that prosecution has proved its case beyond reasonable doubt.
28. Accordingly, appeal is allowed. The judgment and order of conviction passed by the trial court is hereby set aside. The appellant-accused Shivanna is acquitted of the offences punishable under Sections 7, 13 (1)d read with Section 13(2) of the Prevention of Corruption Act, 1988. His bail bonds stand cancelled.
Sd/-
JUDGE Cs/BSR/Bkp/-