Sri R Samba Murthy vs State Of Karnataka on 20 December, 2019

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Karnataka High Court

Sri R Samba Murthy vs State Of Karnataka on 20 December, 2019

Equivalent citations: AIRONLINE 2019 KAR 2333, 2020 (2) AKR 132

Bench: K. N. Phaneendra

                         1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

 DATED THIS THE 20TH DAY OF DECEMBER, 2019

                    BEFORE

  THE HON'BLE MR.JUSTICE K. N. PHANEENDRA

        CRIMINAL APPEAL NO.662/2010

BETWEEN

SRI. R. SAMBA MURTHY
AGED 41 YEARS
S/O. R GUNDU RAO, INSPECTOR
DEPARTMENT OF WEIGHTS AND MEASURES
CHALLAKERE SUB-DIVISION
CHALLAKERE

AND RESIDENT OF
NO.64, TEACHERS LAYOUT
VIDYARANYAPURA
BENGALURU - 560 097                 ... APPELLANT

(BY SRI C.V. NAGESH, SENIOR COUNSEL ALONG WITH
SRI. RAGHAVENDRA, ADVOCATE FOR C.V. NAGESH
ASSOCIATES)

AND

STATE OF KARNATAKA
BY THE POLICE INSPECTOR
LOKAYUKTHA POLICE STATION
CHITRADURGA                       ... RESPONDENT

(BY SRI VENKATESH S. ARABATTI, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER
 SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
 JUDGMENT        ORDER      DT.31.05.2009      IN
 SPL.(P.C.A)NO.11/2006 PASSED BY THE PRL.DISTRICT
 SESSIONS JUDGE, CHITRADURGA CONVICTING THE
                            2


 APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7 AND
 SEC. 13(1)(d) R/W 13(2) OF THE PREVENTION OF
 CORRUPTION ACT, 1988.

     THIS CRL.A HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON      08.11.2019 COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Aggrieved by the judgment of conviction and sentence passed by the Principal Sessions Judge, Chitradurga in Special Case (PCA) No.11/2006 dated 31.05.2009 for the offence punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

2. The Trial Court after holding the accused guilty, sentenced the accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act, 1988. In default to pay the fine amount, he shall undergo simple imprisonment for a period of one month. Further, the accused was sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.5,000/- for the offence punishable under Section 13(1)(d) r/w. Section 3 13(2) of the of Prevention of Corruption Act, 1988 with a default sentence to undergo simple imprisonment for a further period of three months.

3. Before adverting to the grounds urged before this court, it is just and necessary to bear in mind the facts of the prosecution case:

Admittedly, there is no dispute that the accused/appellant was working as an Inspector in Weights and Measures Department, Sub-Division at Challakere. It is the case of the prosecution that the complainant by name R.Prasanna Kumar has lodged a complaint stating that he is a Goldsmith by profession and he had two electronic weighing machines, but due to some un-avoidable circumstances, he could not get his weighing machine stamped from the department of Weights and Measures for many years. In this context, about 10 to 12 days prior to 6.5.2006, on one day he had been to the department of Weights and Measures, Challakere, where the accused was working and the complainant consulted the accused to get his weighing machines stamped. It is alleged that, at that time, the 4 accused asked him since how long the said machines were not got stamped. There was delay of more than one year as disclosed by the complainant, then the accused told him that a penalty of Rs.7,000/- can be levied. It is alleged further that, for the purpose of stamping the said machines the accused asked the complainant to pay a sum of Rs.4,000/- as bribe to stamp the machine and to see that no case is booked against him. However, the complainant could not meet the accused due to the death of his uncle. It is the further case of the prosecution that on 06.05.2006, the complainant again went to the accused along with his two weighing machines and at that time, it is alleged that the accused asked him to pay a sum of Rs.4,000/-, but on that day, the complainant pleaded that he had only Rs.1,000/- with him and pay the same to the accused. In that context, the accused stamped only one machine and told the complainant to bring the remaining amount of Rs.3,000/- so as to stamp the other machine also. As the complainant did not wish to 5 pay that much amount, he went to Lokayuktha Police and lodged the complaint.

4. After conducting the preliminary panchanama, which is called as entrustment mahazar, the police collected an amount of Rs.3,000/- from the complainant, applied phenolphthalein powder to them and after conducting several tests and informing the witnesses and the complainant that if the accused receives the said amount, if his hands are washed in sodium carbonate solution, the resultant solution would change its colour to pink confirming that, the accused has received the said amount. It is the further case of the prosecution that on the same day, the police secured the witness and along with other police witnesses went to the office of the accused. In fact the complainant and the shadow panch witnesses went to the department of the accused. It is further alleged that, the accused received the said amount of Rs.3,000/- and kept the same in his shirt packet. Therefore, it is alleged that, after demand and acceptance of the said amount by the Accused from the 6 complainant, and after receiving the pre-instructed signal, police and the other panch witnesses went inside and drawn the trap mahazar, recovered the bribe amount, and found that Accused received the said money as illegal gratification for to show the official favour to the complainant. Hence, after completion of the entire investigation, charge sheet has been laid.

5. The Trial Court after securing the presence of the accused has framed charges for the above said offences and put the accused on trial. The prosecution in all examined eight witnesses as PWs.1 to 8 and got marked Exhibits P1 to P27. The accused was also examined as DW1 and Exhibits D1 and D2 were got marked and during the course of trial, Exhibits C1, C2 and MOs.1 to 12 were also got marked. After analyzing the entire oral and documentary evidence on record, the Trial Court has come to the conclusion that the prosecution has proved the case beyond reasonable doubt. Hence, recorded the judgment of conviction and sentenced the accused as noted supra.

6. Sri C.V. Nagesh, learned Senior Counsel strenuously contends before this court that, the accused has taken up a defence that the accused has actually received the entire money of Rs.4,000/- from the complainant i.e., Rs.1,000/- at the first instance and also Rs.3,000/- on the date of the alleged trap. But, it is the contention of the accused that it was the legally payable amount by the complainant for the purpose of stamping the weighing machines i.e., the legal fee and as well as the penalty required to be payable by the complainant. Therefore, the court has to examine whether the defence taken up by the accused is established in this case by preponderance of probabilities and in turn to ascertain whether the prosecution has proved its case beyond reasonable doubt. In this context, the learned counsel has taken me through the material evidence and witnesses and also the material documents placed before the court in order to show to the court that it was only the legal amount payable by the complainant was taken by the accused. The learned counsel also contended taking me 8 through the evidence of the accused, that the statement of the accused made before the Investigating Officer immediately after the trap proceedings and also the evidence of the shadow witnesses and other witnesses and submitted that there is a serious doubt with regard to establishing of the case of the prosecution as alleged against the accused.

7. It is further contended that the Trial Court has not properly appreciated the oral and documentary evidence on record and as such, this court has to re- appreciate the same and find out whether the benefit of doubt requires to be given in favour of the accused or not. He also contends that on the basis of the materials on record if two views are available to the court as to whether it is a bribe amount given to the complainant or it is the legally payable amount taken by the accused, if such doubt is available, the view in favour of the accused has to be preferred. Therefore, for all the above said reasons, he prayed for allowing of the appeal and consequent acquittal of the accused for the above said offences.

8. Sri Venkatesh S. Arabatti, learned counsel for the respondent, countering the above said arguments has submitted that the accused has accepted the receipt of the amount from the complainant which was sought to be proved as a bribe amount. If once the tainted amount is recovered from the Accused, the court has to draw the presumption u/s.20 of the Prevention of Corruption Act. The learned counsel also again relied upon the evidence of the same witnesses as relied upon by the learned counsel for the Accused and tried to convince this court that though the complainant has to legally liable to pay stamp amount but the said amount was not actually received by the accused as fee or fine, but he has received the said amount as bribe. As against an amount of Rs.7,000/- he has received only Rs.4,000/- for the purpose of stamping the weighing machine i.e., for the purpose of showing official favour to the complainant. He also contended that the evidence of PWs.1, 3 and 5 if it is properly appreciated, they corroborate each other except some small contradictions and omissions which do not go to the root 10 of the prosecution case. Ex.D1 and Exs.P7 & 8 are also important documents relied upon by the prosecution, which discloses that the said amount was paid as bribe and not as a legal fee payable. There are discrepancies with regard to the exact legal fee payable and what exactly the penalty and how the accused has distinguished the same and received the amount is not established during the course of evidence by the accused. Therefore, once the amount is recovered at the instance of the accused, the court has to presume the existence of the official favour and the said amount was received by the accused for showing official favour in favour of the complainant. He also had drawn my attention to various documents which I am going to discuss little later. Therefore for all these reasons, the learned counsel for the respondent-state has submitted that the accused has not even proved his defence by means of preponderance of probabilities, the probabilities which are sought to be proved otherwise demonstrated to be not in existence. Therefore, the appellant is not entitled for any remedy before this 11 court. Therefore, under the above said facts and circumstance of the case, this is a fit case where the appeal has to be dismissed.

9. In view of the above said rival contentions, the court has to consider, as to whether the accused has proved his defence by means of preponderance of probabilities and that whether the prosecution has proved its case beyond reasonable doubt. The Court has to strike the balance between the two after analyzing the oral and documentary evidence on record.

10. In order to prove the guilt of the accused u/s.7 and 13(1)(d) of the Prevention of Corruption Act., the prosecution has to prove the ingredients of Sections 7 and 13(1)(d) of the Prevention of Corruption Act.

11. Apart from the above, the presumption of Section 20 of the Act, can only be raised if the ingredients of Section 20 of the Act is established. Section 20 of the Act reads as follows:

"20. Presumption where public servant accepts gratification other than legal remuneration.--

(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause

(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

Before adverting to the facts of this particular case, it is just and necessary to bear in mind some of the rulings in connection with the PC Act.

12. In a decision reported in AIR 2006 SCC CRL.401 between T.Subramanyam Vs. State of Tamilnadu, wherein the Hon'ble Apex Court has made it clear that mere proof of receipt of money by the accused in the absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused.

13. In another ruling reported in AIR 2013 SC 3368 between STATE OF PUNJAB VS. MURLI MOHANLAL VERMA, the Hon'ble Apex court has further re-iterated that - 'the demand of illegal gratification is a sine qua non constituting the offence under the PC Act and that in exceptional circumstances, the Appellate court, for compelling reasons should not hesitate to reverse the judgment of acquittal passed by the court below if the findings so recorded by the court below are found to be perverse, that is, if the conclusions arrived at by the court below are contrary to 14 the evidence on record, or if the court's entire approach with respect to dealing of evidence is found to be patently illegal leading to miscarriage of justice, or if the judgment is unreasonable and passed on an erroneous understanding of law and the facts of the case."

14. In yet another ruling reported in (2009) 2 SCC (Crl.) 1 between C.M. Girish Babu & CBI, Cochin, the Hon'ble Apex court has held that -

'In spite of recovery of money from the AGO, presumption u/s.20 of the Act cannot be raised automatically as greater burden lies on the State to prove demand and acceptance beyond reasonable doubt.'

15. Last, but not least, in other rulings reported in (1) (2010) 2 SCC (Crl.) 864 between Banarasidas Vs. State of Haryana; and (2) (2010) 2 SCC (Crl.) 385 between State of Maharashtra Vs. Dhyaneshwar, wherein the Hon'ble Apex court has considered the provisions of Sections 101 and 102 of the Indian Evidence Act and has held that -

"Before the accused is called upon to explain as to how the tainted money in 15 question was found in his possession, the foundational facts must necessarily be established by the prosecution. It is made clear that even while invoking Section 20, the court is required to consider the explanation offered by the accused, if any, that too, on the touchstone of preponderance of probabilities, not insisting proof beyond reasonable doubt which is the initial burden cast on the prosecution.'

16. Therefore, in view of the above cited decisions, this court will have to see whether, the Trial Court is justified in recording conviction against the accused. In trap cases, the complainant will be an interested witness, in the sense that he would be interested in trapping the accused who is stated to have not done what ought to have been done legally, according to him. The evidence of the complainant needs corroboration in material aspects and this should be corroborated by the shadow witness who would have accompanied him at the time of alleged demand and receipt of bribe money by the accused.

17. Coupled with the above, the court has to examine the defence taken up by the accused whether the evidence available on record reasonably creates a suspicion in the case of the prosecution. In the event of the court coming to the conclusion that two views are available on the materials available on record itself and doubtful circumstances are available, in such an eventuality, the view which is favourable to the accused has to be preferred. Some times, the defence taken up by the accused and the case of the prosecution with regard to the demand and acceptance of the bribe money with reference to doing of any work of the complainant pending with the accused may be overlapping with each other. In such an eventuality, the court has to consider the overall evidence on record and find out whether the case of the prosecution is doubtful in view of materials placed before the court by the accused in order to establish his defence.

18. With these observations, now, I will proceed to discuss about the case on hand:

As noted earlier, the accused in his defence has categorically admitted the receipt of the money from the complainant i.e., the total sum of Rs.4,000/- in all, i.e., at the initial stages Rs.1,000/- and Rs.3,000/- later.

But, it is the defence of the accused that the said amount was legally payable by the complainant towards legal fee and fine amount for the purpose of stamping two electronic weighing machines of the complainant.

In this regard, the defence of the accused is fully fortified as admitted by the parties that he has taken the defence at the earliest point of time.

19. It is seen from the records that PW-1 in his evidence at paragraph 29 has categorically stated that as soon the trap was completed the Investigating Officer has asked the accused for his explanation, then the accused has told that he has not received any bribe amount, but he has received Rs.600/- towards fee;

Rs.1,400/- towards fine and another Rs.2,000/- to impose fine on the complainant totally he received an amount of Rs.4,000/- from the complainant. 18

20. PW-5 also in his evidence at paragraph 13 has stated that after the alleged trap, the accused before the Investigating Officer on enquiry has re-iterated that he has taken an amount of Rs.2,000/- towards the fee and he has produced the receipt book as per Ex.C-1 and he has also stated that the complainant has paid an amount of Rs.3,000/- towards the fee and other fine and the complainant has told that, he will bring another sum of Rs.1,000/- towards fine, immediately, the Lokayuktha Police came there. Therefore, as per Ex.P- 14, the accused has given his explanation.

21. Likewise, PW-7 Mr. R.K. Raju has also stated the same thing at paragraph 3 in the course of cross examination. PW-4 Mr. Karibasavagowda, who is the Investigating Officer at paragraph 4 of his evidence, has categorically, admitted that accused has given an explanation in writing as per Ex.P-14, that he has not taken any bribe, but he has taken the legally payable amount of Rs.4,000/- from the complainant. From the above said evidence, it is crystal clear that the accused at the earliest point of time immediately after the 19 alleged trap has given an explanation and accepted the receipt of total amount of Rs.4,000/- and he has given explanation that it was only taken by him towards legally payable fee and fine from the complainant. Therefore, the above said defence have to be probabalised by the accused by proving the facts by preponderance of probabilities.

22. Now, in this context, as I have already noted that the case has to be proved by the prosecution and the defence taken up by the accused are so interconnected with each other and overlapping evidence is available. Therefore, the entire evidence has to be evaluated by the court in order to understand whether the prosecution has proved its case beyond reasonable doubt or the accused has established his defence by preponderance of probabilities.

23. The important witnesses are PWs.1 to 3 as well as PWs.5, 7 and 8. PW-1 (complainant) is the prime witness to the prosecution. Of course, in his examination in chief he has deposed that since 10-11 years, he has been doing the business of gold and silver 20 articles. He has purchased the electronic weighing machines and he has to get it certified by the Weights and Measures Department. There is no dispute that the accused was working in the said office during the relevant point of time, as Weights and Measures Inspector.

24. It is further stated by the PW.1 that about 10 to 12 days prior to 6.5.2006, he had been to the office of the accused along with the weighing machines as he had not taken the certificate since three years and accused told him that he has to pay an amount of Rs.7,000/- towards fine and stamping fee etc., and he told that the complainant can pay Rs.4,000/- so that he can put stamp and seal to the electronic weighing machines. It is stated that the said amount was asked by the accused towards bribe. There is no explanation that whether instead of Rs.7,000/-, the accused has reduced that amount to an extent of Rs.4,000/- towards fee and fine amount.

25. It is further stated by the complainant that on 6.5.2006, he went to the office along with Rs.1,000/- he 21 paid amount to the accused and requested him to put seal to two electronic weighing machines but the accused told that he can put seal to one machine and then he would put seal to another machine when remaining amount of Rs.3,000/- is paid. Very peculiar enough, after payment of Rs.1,000/-, the complainant stated that he has asked for receipt, then the accused told that when the remaining amount of Rs.3,000/- is paid, he would give a receipt. In the examination in chief itself, it is elicited that the complainant has asked for the receipt for having paid the amount and the accused has admitted and accepted that he would give a receipt after payment of the remaining amount. The doubt arises as to why if at all the said amount is paid towards bribe, the complainant would ask for receipt if he is fully knew that the said amount was not towards legally payable amount.

26. It is the further case that the complainant having not interested to pay the remaining amount, has lodged the complaint and entrustment proceedings were held in the respondent-Police Station and on the said 22 date i.e., on 6.5.2006, the complainant and other shadow witnesses and other witnesses and police personnel went to the accused office and it is stated by PW-1 that the accused asked whether he has brought Rs.3,000/- then the complainant paid the said amount to the accused and he received the same and kept in his shirt packet, after counting the same. He took the weighing machine inside the office for the purpose of sealing. Thereafter, the complainant gave pre- instructed signal to the police and the police along with other panch witnesses rushed to the spot and in fact, when the hands of the accused was washed with sodium carbonate solution, the resultant solution turned into pink as the accused had received the tainted currency notes. Thereafter, the police recorded the statement of the accused, the panch witnesses, the complainant and drew up the entrustment mahazar.

27. Therefore, the complainant has categorically stated about the demand and acceptance of money by the accused for the purpose of sealing the electronic machines.

28. In the course of cross examination, it is admitted by the complainant that he had not secured any certificate to the two weighing machines though he has purchased them 2-3 years prior to the alleged incident and he knew that he has to pay the fee as well as fine towards the same and he has also admitted that when he had been to the office of the accused about 10 to 12 days prior to 6.5.2006, he has not got the certificate to the weighing machine and returned back and he has not filed any complaint as the accused told him that approximately he has to pay Rs.7,000/- towards fee as well as the fine amount. He has also admitted that on 6.5.2006, the accused has asked Rs.4,000/-, but the complainant has not asked how much amount to be payable towards fee and fine. But, after payment of Rs.1,000/- he demanded for receipt, but he has not asked the accused to return the amount of Rs.1,000/- as he has not given any receipt. But, admittedly, the accused has told that the receipt will be given afterwards. He has also admitted that he was working as a Corporator of Challakere Municipal Council. 24 He has also admitted that on the date of the incident at the time of trap when the accused demanded the amount one old man and a boy were sitting inside the said chambers of the accused. He has also admitted that the shadow witness was standing at a distance but he has not entered the hall when the demand and acceptance alleged to have been made. He has also admitted that, accused has given his statement before police till that point of time, the said old man and boy were present and thereafter they went away and afterwards the police have seized the attendance register and receipt book from the office of the accused. It is suggested to this witness that because he had to pay fee and fine to the accused, the accused has received the said amount towards fee and as well as fine amount by misunderstanding the accused. He has filed a false complaint to the Lokayuktha Police and it is also suggested that on the date of the trap, the accused had given receipt for Rs.2,005/- and before issuing another receipt for the remaining amount towards fine by receiving the remaining amount, the Lokayuktha 25 Police came inside and trapped the accused. The above said suggestions have been denied by the accused. Whether these suggestions have been probabalised or not have to be looked into by the other evidence.

29. Totally what can be gathered from the evidence of PW-1 is that, there was a due of fee and fine amount to be payable by the complainant as admitted by him that he has not got certificate and seal to the said weighing machine and he has asked for the receipt for an amount of Rs.1,000/- was paid and accused told that he would give the receipt for the remaining amount is paid and another machine is stamped or sealed.

30. The complainant has not in so many words stated about the presence of shadow witness along with him, he has only stated that the accused has simply received the money and kept in his pocket no other conversation had been taken between him and the accused person.

31. Therefore, in this background, the court has to see the evidence of the other witnesses PW-2 one Mr. Diwakar Reddy. He has stated that, after the preliminary entrustment mahazar on the date of the incident they had been to the office of the accused. PW- 1 and this witness went inside the office but he stayed at a distance of 8 to 10 feet away nearby the window for the reasons best known to them, and he has stated that the complainant asked the accused to put the seal or stamp to the weighing machines and then he asked the receipt for having paid Rs.1,000/- earlier and then accused asked for Rs.3,000/-, the bribe amount and thereafter, the complainant told that he would pay the amount after the accused puts the seal or stamp and told that he has brought the money and thereafter, the accused took the weighing machine to the inside the room and after words came back and PW-1 paid the amount of Rs.3,000/- and accused counted them and kept in his packet and he told that he would do the work of the complainant then the complainant went outside and gave the pre-instructed signal. This is the material 27 deviation by this witness, as PW-1 himself has not stated in so many words as noted above as to what exactly transpired between him and the accused with regard to the previous demand of Rs.1,000/- not giving receipt and taking the weighing machine inside and thereafter the amount of Rs.3,000/- was paid. All these materials are conspicuously absent in the evidence of PW-1. Nevertheless, this witness has categorically admitted that on that day also, the complainant has asked for receipt for having paid Rs.1,000/- earlier that also fortifies that the complainant had to pay some fee and fine towards the stamping of weighing machine. This witness was standing at a distance of about 8 to 10 feet away. It also creates a doubt that the said conversation was actually heard by the witness because the conversation as stated by PW1 and this witness totally differs and it is a total improvement by this witness when compared to the evidence of the complainant. Of course, there is no dispute with regard to the recovery of the said amount and washing of the 28 hands of the accused as noted above in lieu of the defence taken up by the accused.

32. Another witness so far as this circumstance is concerned is PW-3. PW-3 Srinivasaiah S.T., has categorically deposed that while he was working as Head Constable in Lokayuktha, he also went as another panch witness. He has deposed before the court that on that particular day he was also directed to go along with PWs.1 & 2 by following them to the office of the accused. PWs.1 & 2 went inside the office of the accused at about 12.35 p.m., and at 12.45 p.m., PW-1 gave the pre-instructed signal by giving phone call. Thereafter, he also went inside along with other police personnel. He has categorically stated that after the incident, he prepared sketch of the scene of offence as per Ex.P-15.

33. In the course of cross examination, he has stated that as per Ex.P-15, he has not shown the particular distance in the sketch. It is suggested if a person stands near a window (where PW-2 stood), if the curtains are closed, the conversation that had taken 29 place between the accused and PW-1, was not audible to the witness. But he has not completely denied that, he has stated that remotely it is visible and audible. However, he has admitted the place where chamber of the accused is shown by the letter 'O', if any conversation takes place on that place that cannot be heard by anybody. It is also further doubtfully stated by him that he has shown that the conversation between the accused and the complainant was not taken place at the Chambers marked at 'O', but it is suggested that the conversation taken place in that place, but he denied the suggestion that at the instance of the Investigating Officer, he has shown that the conversation was not taken place on that particular place. He has further deposed that the place where PW- 2 was standing near the window which had a cloth curtain that can be moved on either side from putting the hand from inside. Therefore, he also says doubtfully that there was a curtain and it can be moved from one side to another. But, PW-2 has not stated that he has moved that curtain from one side to another so as to 30 see and hear the conversation between the accused and PW-1.

34. Therefore, looking from the evidence of this witness also, it creates some doubt whether PW-2 could have heard the conversation between PW-1 and the accused. Added to this, I have already expressed that the conversation as stated by PW-2 has not been stated by PW-1 which also creates some doubt with reference to what exactly the conversation that was taken place between PW-1 and the accused. Hence it cannot be said that with all certainty, the evidence of PW-1 is fully and materially corroborated.

35. PW-5 is another important panch witness who participated in the raid party. He has also apart from deposing as to what happened in the Lokayuktha office with regard to the entrustment proceedings, has stated that he was selected as second panch in the case. Deposing with reference to the incident taken place in the office of the accused, he has stated that after the complainant gave the pre-instructed signal through his mobile, he went along with the Investigating Officer. 31 The Investigating Officer immediately as soon entered into the office of the accused, asked the accused to pay the bribe amount taken by him. Immediately, this witness has removed the amount from the packet of the accused and thereafter, the hands of the accused was washed in sodium carbonate solution. So far as this aspect is concerned, the witness was treated as hostile. In the course of cross examination, as I have already noted it is elicited what exactly the reply given by the accused apart from that he says that the police have also seized Ex.C1 receipt book, which was shown by the accused to the police. The said document was marked as Ex.D-1 also which was already marked by the prosecution. I am going to discuss this document little later.

36. Nevertheless, this witness has categorically stated that the said document was seized in the office of the accused. He has also stated that the said book was taken by the Investigating Officer in the office of the accused. There is no much difference in the evidence of this witness the important aspect that 32 should be taken into consideration is that the seizure of Ex.D1 by the Investigating Officer in the office of the accused, with regard to this witness was not treated hostile regarding seizure of EX.C1 by the Investigating Officer after the alleged trap.

37. Looking to the above said evidence, of these witnesses, coupled with the evidence of the Investigating Officer, it is clear that there is some doubt with regard to the conversation that has been taken place between the complainant and the accused. There is lot of cleavage between the evidence of PWs.1 & 2 with regard to what exactly the conversation taken place between PW -1 and the accused. PW-1 himself says that he demanded for receipt of payment of Rs.1,000/- earlier and also demanded receipt for having paid Rs.3,000/-. But PW-2 does not say about that particular aspect, but he uses the word that the accused has demanded bribe amount of Rs.3,000/-. Those wordings are totally an improvement before the court and it totally contradicted the evidence of PW-1. Therefore, it creates a serious doubt whether the 33 accused has actually demanded the said money as bribe or received the said amount towards legally payable fee and as well as fine amount to be payable by the complainant for his work because it is the consistent stand of the accused that he has received the entire amount of Rs.4,000/- towards the said aspect. This particular aspect has not been properly appreciated by the Trial Court. But, it went on discussing that though there are some contradictions and omissions the demand and acceptance of the amount as if as a bribe has been established by the prosecution.

38. Apart from the above, it is shown that PW-2 was almost at a distance of 13' away from the place where PW-1 and the accused was conversing with each other and there was a curtain put to the window which said to have been not slided by PW-2. Therefore, there are lot of contradictions and omissions with reference to the material particulars.

39. It is not that the Investigating Officer has no other material evidence on record at that particular point of time. It is admitted by both PWs.1 & 2 that at 34 the time of conversation between the accused and PW- 1, and as well as demand and acceptance of illegal gratification by the accused, there were two persons present one an aged man and a boy and it is evident from the above said evidence as noted, those persons were the best witnesses who could have stated as to what exactly the conversation taken place between the accused and PW-1, because they were standing very close PW-1 and accused compared to PW-2 who was standing at far away distance. Therefore, the non examination of those witnesses deliberately by the Investigating Officer also creates a serious doubt.

40. PW-3-Srinivasaiah S.T., who was also very much present and followed PWs.1 & 2 has not whispered anything about the conversation between the accused and PW-1. Therefore, the conversation that had taken place between the accused and PW-1 is not materially substantiated, rather the same has been contradicted between one witness and another witness. The Investigating Officer has also not seized the electronic weighing machines. This also creates a 35 serious doubt as to how and when the stamp was put to the electronic machine and where the another electronic machine was kept. Therefore, the defence of the accused that as soon as the PW1 entered the office, he has asked for the money towards legally payable fee and fine from the complainant. As the complainant has paid Rs.3,000/- and by saying that he would bring another sum of Rs.1,000/-, immediately the police entered the office and therefore within a fraction of a minute he could not have connected any material on the spot particularly Ex.D1 which is the receipt book which was written in the name of the complainant for a sum of Rs.2,005/-. Therefore, looking from the above said facts and circumstance, the conversation between PW-1 and the accused with reference to the demand and acceptance as bribe amount creates a serious doubt and that has not been properly appreciated by the Trial Court.

41. Apart from the above, whether the other materials available on record further probabalises that the accused must have received this amount towards 36 legally payable fee and fine by the complainant is also a a factor that should be looked into. The documents available on record and the oral evidence with reference to the same, the prosecution itself has examined the competent person who can explain about the fine amount as well as the legal fee payable by any person according to the Weights and Measures Act and Rules.

42. PW-6 Siddalingappa who was the Assistant Controller of Weights and Measures Department has deposed before the court that he was working as Assistant Controller and accused was coming under him who was working at Challakre. He was examined to certify the service particulars of the accused. There is no dispute so far as this aspect is concerned. It is also further stated by him that, according to the Rules, Rs.500/- fine can be imposed for 300 grams weighing machine and Rs.200/- per year fine can be imposed. He also deposed that prior to 8.5.2006 the electronic mode weighing machine of the complainant were not tested and certified. On the date of the trap, the Investigating Officer requested this witness to put the seal to the 37 electronic machine of the complainant. Therefore, he put the seal and issued the certificate. He has also stated that he has issued Exs.D-23 and D-24 which are the certificates issued by him which is fee paid certificate as well as the fine imposed. For another machine also, Ex.P-25 and P-26 were got issued. These documents are seriously attached during the course of cross examination. In the course of cross examination, it is suggested that if the machine is of the category of 2(b) there will be Rs.200/- towards renewal fee and after three years Rs.1,200/- additional fee has to be paid i.e., total Rs.1,400/- fee has to be levied. The Court itself has put a question that what is the fine amount that can be imposed. He has categorically stated that Rs.500/- to Rs.2,000/- fine can be imposed as per the Rule 24 read with 47 of the Prevention of Corruption Act. Therefore, it is clear that Rs.1,400/- fee and Rs.2,000/- fine can be imposed. Therefore, totally Rs.3,400/- is the amount that ought to have been paid by the complainant for the certification of the said electronic weighing machines. It is further clarified at 38 paragraph 7 of his evidence that they have also calculated the 7 weighing stones and Rs.105/- fee has to be collected at the rate of Rs.15 per weighing stone. Therefore, he has stated that an amount of Rs.2,005/- has to be collected from the accused towards the fee so far as the two weighing machines are concerned. Therefore, Rs.2,000/- fine and Rs.2,005/- as fee totally the complainant ought to have paid an amount of Rs.4,005/- for the purpose of getting the certificate of his weighing machines. He has also fortified Ex.D-1 (Ex.C-1 is also same document) and stated that Ex.D1 is the fee receipt book and there is a receipt of Rs.2,005/- which bears the signature of the accused and the seal of the department. This clinches the point with reference to other evidence already referred to that PW-3 Lokayuktha Police Head Constable, he himself has admitted that Ex.D1 the receipt was shown by the accused to the Investigating Officer at the time of trap and the said document was taken by the Investigating Officer at the time of investigation. But the same appears to have been not done and the police have not 39 actually seized the same in connection with this case. On careful perusal of Ex.D1 it discloses that the receipt has been drawn by the accused to the extent of Rs.2,005/- towards fee. Therefore, it creates a serious doubt whether Ex.D1 was not properly considered by the Investigating Officer and the Trial Court while coming to the conclusion that the accused rightly or wrongly has drawn the receipt for Rs.2,005/- and he has to issue further receipt towards the fine amount i.e., Rs.2,000/-, but not issued.

43. In this background, Exs.P-24 and 25 have to be examined by the court. Exs.P23 and 24 as could be seen were not issued in the name of PW-1, the complainant, which was alleged to have been issued by PW-6. Further, Ex.P-25 and 26 are the receipts issued in the name of the complainant. Very peculiarly enough Exs.P-23 to 26 are not regular serial numbers in the said book. How, on 8.5.2009, these documents can be issued is not explained by PW-6. Further, added to this, there is no explanation by PW-1 that he has paid any further amount as per Exs.P-23, 24, 25 and 26 for the 40 purpose of issuance of the said receipts without taking any amount how PW-6 can issue these receipts is also not explained. Further, added to that, the custody of these documents are not properly answered by the learned counsel for the respondent-Police. If at all these receipts were issued in favour of PW-1 while returning the stamped electronic weighing machines, the custody of these receipts should be with PW-1. How, these documents are produced before the court by PW-6 is a strange circumstance which went un- explained before the court. Even, PW-6 has not stated that he has produced those documents before the court Investigating Officer also never spoken about these documents being seized during the course of investigation or subsequently at any point of time. Therefore, it creates a serious doubt with reference to the existence production of these documents as to whether they were genuine documents or not. It is also not the case of the complainant PW-1 that he has paid any money to PW-6 for issuance of the above said certificates. Therefore, as rightly contended, the 41 amount mentioned in these documents again creates a serious doubt as to how the amount was received for the purpose of issuance of these receipts.

44. PW-6 in fact has admitted that the receipt issued by the accused for a sum of Rs.2005/- towards fee is correct as per his deposition at his 7th paragraph Contrary to that how can he speak that he has issued Exs.P23 to P26 for different amount. Therefore, this also creates a serious doubt whether for the purpose of improving the case, these documents have been placed before the court without even explaining the legal custody of these documents. In the absence of explaining the custody of these documents and also explaining the contents of these documents with reference to the actual fee payable etc., the case of the prosecution cannot be believed as a truthful case.

45. In this background, again the mahazar drawn in this particular case Ex.P-4 has to be looked into:

In the mahazar Ex.P-4 there is no mention of seizure of Ex.D1 or this Exs.P23 to 26. How, these documents came into picture is not explained by the 42 prosecution. But on the other hand, as I have alrelady noted that PW-3 has admitted the seizure of Ex.D1 which is placed before the court which is the receipt shown by the accused to the Investigating Officer for having drawn the receipt for a sum of Rs.2005/- in favour of the complainant. Therefore, this creates a serious doubt with regard to the actual payment to be payable towards the fine as well as fee for the purpose of getting the stamp on the electronic weighing machine as well as fee and fine amount to be payable towards the same.

46. In view of the above said circumstances, it goes without saying that the complainant ought to pay some amount towards fee and fine amount. What is that amount is not properly explained in detail by anybody. But the Trial Court has taken un-necessary pains to mathematically calculate as to how much amount the complainant ought to have paid and received by the accused persons towards fee and fine.

47. The Investigating Officer also seized Exs.P7 and P8. Exs.P7 and P8 on careful examination, it does 43 not contain any amount mentioned on 8.5.2006. Comparatively Exs.P23 and P24 shows that under Ex.P23 Rs.1,100/- was paid on 8.5.2000 itself, and why that amount was paid is also not explained. Ex.P7 and P8 and D1, if they are very carefully examined, they are part and parcel of Ex.D1 three receipt books. But Exs.P-23 to P26 does not tally with the receipt book Ex.D1. Therefore, it further creates a serious doubt from which book, these four documents i.e., Exs.P7, P8 and Ex.D1 and receipts Exs.P-23 to P26 have been produced before the court. Therefore, if it is said that one book is maintained towards fee and another book is maintained towards fine amount, those two books should have been produced before the court by the investigating agency. In the absence of that, it creates a serious doubt with regard to the mathematical calculation done by the learned Trial Judge.

48. Now, coming to the judgment of the Trial Court. At page 77 of the judgment, the Trial Court has extensively relied upon Exs.P23 to P26, but it has not taken into consideration that how these documents 44 came to the court and how PW-6 can issue these documents and they were not seized under any mahazar much less under Ex.P-4. Neither the Investigating Officer nor PW-6 thrown light as to from whom these documents were seized, Investigating Officer must have explained about these documents. The Trial Court after considering the evidence on record has come to the conclusion on meticulous calculation, that what is the actual amount that should have been recovered by the accused is mush more compared to the amount received by him. He would have only received Rs.1,600/-. On the other hand, he has received Rs.4,000/-. Therefore, court held that the remaining amount is towards an illegal gratification.

49. But, this is not the case of the prosecution at all. The prosecution case is that the accused has received the entire amount as bribe. But on the other hand, a serious doubt has been created in the evidence of this witnesses as to what exactly the fine amount and fee ought to have been paid by the complainant for the purpose of getting the seal to the 45 electronic machines and the receipts for having paid fee and fine amount. The court itself got clarified in the evidence of PW-6 that an amount of Rs.2,000/- can be levied as fine and Rs.1,400/- can be levied as fee and a further sum of Rs.105/- can be levied towards the fee to the 7 weighing buds (stones). Therefore, in all Rs.3,000/- and odd amount has to be paid but Rs.4,000/- has been paid, it creates a serious doubt as to the confusion in the prosecution case itself.

50. In the above said backdrop the defence taken up by the accused has to be examined with reference to the preponderance of probabilities. The probability in this particular case may be that the complainant had to pay some amount towards fee and fine for the purpose of getting his electronic machines sealed and stamped. The accused also cannot completely waive the said amount. Therefore, it is elicited from PW-1 that he has not actually enquired the accused, when he demanded Rs.7,000/- on 6.5.2006 as to what was the fee payable and what was the fine payable and on the other hand, when he paid Rs.1,000/-, he has demanded for receipt 46 and further even on the date at the time of trap when he has paid an amount of Rs.3,000/- he demanded receipt for having paid the amount and also the amount paid earlier a sum of Rs.1,000/-. This admission on the part of PW-1 clearly goes to show that he intended to pay the amount towards fee and also towards fine amount. This perhaps might have been misconstrued by him in order to lodge a complaint against the accused. Why this has been done is also another factor that should be taken into consideration by this court.

51. In the evidence of PW-1, it is suggested to him that he has been working as a Corporator of Town Municipal Council, Challakekre. He has admitted the said suggestion. It is further suggested that on 7.5.2006, the accused had visited the shop of this petitioner and he enquired about the stamping and sealing of the electronic weighing machines and he also demanded for documents to that effect as the complainant had not got the seal and stamp on the electronic machines then he told that he has to impose fine upon him. In that context, there was a quarrel 47 between the accused and the complainant. The said suggestion has been denied. It is also suggested that the complainant being the political person, he questioned the act of the accused and he asked that what was the amount that he has to pay, then the accused replied he has to pay Rs.4,000/- and odd for the purpose of fine and also fee for the purpose of regularizing the electronic machines and he has also stated that he would give receipts for the same. And thereafter, PW-1 accepted that he would fill the fee and fine on the next day. Misconstruing the said amount as a bribe amount demanded by the accused, a false complaint has been lodged by him. These suggestions of course have been denied by PW-1. But so far as this aspect is concerned, the evidence of PW-6 also play a dominant role. He has stated in the course of cross examination that the accused was alone working in the Challakere office and he is the person who has to examine the weighing machines and give certificates and issue receipts towards fine and fee. Therefore, 48 there are chances of accused asking for the fee and fine from the complainant.

52. In this context, the evidence of DW1 if it is read who was also working as Inspector of weights and measures, has deposed that he has examined the receipt Ex.D1 which is the fee recovery book and the same was issued by the accused for a sum of Rs.2,005/- to the complainant. He has taken that document from his earlier in-charge officer. Therefore, it goes without saying that this document is not a connected document by the accused. Of course, he has also stated that the accused has not given any receipt towards fine amount, but it goes without saying that the fine also to be imposed for the purpose of delay in getting the stamps on the said weighing machines.

53. Looking to the above said facts and circumstances, considering the status of the complainant and also he tried to get the certificate of the weighing machines pertaining to him and another by name Vasanthkumar and for that purpose, he has paid some amount to the accused, though there is some 49 discrepancy, the Trial Court has mathematically calculated as to what was the amount due i.e., accused could have only taken Rs.2,200/- towards the fee and fine. But he has taken Rs.4,000/- therefore, it amounts to securing of illegal gratification. But as I have already narrated, this is not at all the case of the prosecution. The Trial Court must have given the benefit of doubt in favour of the accused.

54. Before concluding this case, I also feel it just and necessary to say something with regard to the accused plea as to how it has to be considered by the courts. There could be three propositions with reference to the plea of the accused. Firstly, lifting of the initial obligatory presumption given at the end of Sec.105 of the Indian Evidence Act; i.e., accused can prove that the prosecution itself has not established or discharged its burden. Secondly, creation of a reasonable doubt, about the existence of the ingredients of the offence by taking a specific plea or defence by the accused person; and thirdly, a complete proof of the exception by a "preponderance of probabilities". Even if 50 the plea of the defence is not proved beyond reasonable doubt, but even a slight tilt of the balance of probability in favour of the defence taken up by the accused, then the benefit of such doubt has to be given to the accused. The accused can do this either by showing that the case of the prosecution itself has not been proved beyond reasonable doubt and the absence of existence of ingredients of the offence or he can lead evidence in order to probabalise his case.

55. Exactly, in this particular case, though the prosecution has placed some proof with regard to the transaction between accused and the complainant, but the defence taken up by the accused and the evidence appreciated above probabalises the defence of the accused which creates reasonable doubt with regard to the proof of the ingredients of Section 7 and 13(1)(d) of the Prevention of Corruption Act. In such an eventuality, when the court cannot with all certainty say that the prosecution has discharged its burden u/s.105 of the Indian Evidence Act, then the court has to give the benefit of doubt. Therefore, all that the Principle 51 enjoins is a reasonable scepticium, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the doubtful circumstance and only pick up the necessary evidence for the purpose of convicting the accused.

56. It is also evident and well recognized principles of criminal jurisprudence that the court has to give equal importance to the evidence adduced by the prosecution, and also the evidence adduced by the defence and test the same with preponderance of probabilities. Whether the preponderance of balance of probabilities styled or overwhelmed if it deviates the line between the case of absolute proof and doubtful proof even a tilt is there which bend in favour of the accused in such an eventuality also, the court has to grant benefit of such doubt in favour of the accused.

57. Last but not least, in fact, in this particular case, Section 7 and 13(1)(d) of the Prevention of Corruption Act pre-supposes that the existence of a fact in issue and a relevant fact that, the accused has 52 demanded and accepted an illegal gratification has to be proved in order to raise presumption u/s.20 of the Act that such illegal gratification was received by him for the purpose of showing official favour. Therefore, it is a sene qua non i.e., proving of existence of a relevant fact that, the demand and acceptance by way of illegal gratification, the word illegal gratification is the prime word used in the provision that has to be established beyond reasonable doubt. Therefore, in this particular case, whether the amount received by the accused from the complainant was an illegal gratification or towards the official fee and fine that doubt is not fully clarified beyond reasonable doubt.

58. U/s.114 of the Indian Evidence Act also, the court may presume the existence of certain facts - the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In this case, the court may advert to the existence of the legally payable fee and 53 fine by the complainant with reference to the alleged demand by the accused. Therefore as narrated above, considering the natural course of common events and the conduct of both the complainant and the accused in my considered opinion, the doubt arises with regard to the existence of demand and acceptance as illegal gratification by the accused.

59. Therefore, giving benefit of doubt of all these circumstances, the accused is entitled to be acquitted. Though the Trial Court has written a very lengthy judgment and appreciated the oral and documentary evidence on record, it went wrong in meticulously and mathematically calculating the fee and fine amount instead of considering that the complainant ought to have paid fine and fee for the purpose of getting the certification to his machines. When such doubt is created in the mind of the court, the Trial Court ought to have also given the benefit of doubt to the accused.

60. For the above said reasons, the order of the Trial Court is erroneous and the same is liable to be set aside. Hence, the following:

ORDER (1) The Appeal is allowed.

(2) Consequently, the judgment of conviction and sentence passed by the Principal Sessions Judge, Chitradurga, in Special Case (P.C.A.) No.11/2006 dated 31.05.2009 is hereby set aside. The accused is acquitted for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.

(3) If any fine amount has been deposited by the accused, the same is ordered to be refunded to the accused on proper identification and acknowledgement. (4) The bail bonds and surety bonds executed by the accused and the sureties are hereby cancelled.

Sd/-

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Karnataka High Court