Karnataka High Court
M Mahadevappa vs Union Of India on 16 September, 2011
'&ddle€.C'
IN THE HIGH COURT OF KARRETAKA AT BAGALORE
EATEE THIS THE 16" DAY 0? SEPTEMBER, 2Gi? K " L'*
BEFORE:
THE HON'BLE MR. JUSTICE A_s;~PACa$$UR§ f xv
CRIMENAL APPEAL No 36? gg 2004
BETWEEN:
M. Mahadevappa,
Programme Executive, ,
Doordarshan Kendra, A»u. =
Bangalore, V 1
R19. No.499, _ ;, V.
Veena Vihar, 5" Main; __
Banashankari III Stagé.'_""
II Phase,_€W_Bip¢kf5_
Bangalore SGOAUSS, 3
[By 5:14 s.G,VBh§g§ag}mgdv,g
ANB:§'"
_ $n;¢g éffxfiaga,
7,Statajbg'€B$fS?E,
Eangalcrgf ' "
§Ey_Sx$;_?fésanna Kumar §, Advg
AEPELLANT/S
RESPGNEERTZS
far
Sri: c.§, Jaéhav, adv: fgr C.B5I.§
'ii'*§s1k
""%h:s CKl,%fl is filed afseatiam 3?4{2; Cr,?.C,
":ag3inst tha Judgment dt,
& 3&5. & Spl.
2?.2.G4 gassed by the XX:
Judge far C B.1.
cases,
Bangalore, in Spl.C.C. No.l95/Séwconvicting the
appellantfaccusod. punishable under Sections ?,
l3(1)(d) readwith 13(2) Of P.C. Act, 1988. and
sentencing him to undergo R41. for a period of three
years and to pay a fine of Rs.5,000/~, indefenit to
undergo S.I. for as period. of' two months« fora the g
offence yunishabls under Section ? of the P,C)Aotfz'
1988 and further sentencing him to unde;gouR;I: for~
3 years and to pay a fine of_R$,5,0CO/4}aI.fi:xtovu
undergo S.I. for two months for 1the--eoffenoe7
punishable under Section 13(2) readw£th*13f1}(dIodfe
the P.C. Act, 1988. The substantive sentenoe} of
imprisonment on both the_ counts' *sha1lM .rnn ,h
concurrently and sentence", bf fine'a_shéllV" run
consecutively. * " *
This Cxl.A_ having been heerd end reserved for
Judgment, this days the _Cgn;t,gde1ivered the
following: '. *<.'»*.=
The apgéllant hes eheiienged his conviction and
sentence for the offence punishable under Section 7
=7éadé ifikfiiidih rfmt hhhhh "i3(2} of the §revention of
c¢;rn9£i§n_"s5s,f,19ee {hereinafter called as "the
V'.u Act" _£sr _shott}, on a trial held by the Speoia;
h*_h$u¢ge for QBI cases, Bangalores
V"2;: Ehe feats zelsvant for the ynreose of this
'"sp§ea1 are as under:
.592.
4 C:l.A Efififfié
1993 and an agreement in this zegard was also
executed.
The telewfilm was produced at a cost of ?i;23
lakhs approximately and it was direetee7 b§"»thet9
complainant. The production was cempletedm;e"§uee_9
1993 and the master cassette wee eubm£ttednte?tHe9
accused~M.Mahadevappa, who 9wa§ tfiee thep9Eeeg;eeme
Executive 5;: the commercial eeetien Qitpfieoedarshan
Kendra, Bangalore for p%ev§eW;9t$$e<accused agreed
to telecast the film en the ééeeagiég day i.e., on
29.07.1993.
After 'submittihge9t§e 'master cassette of the
telemfilm, ",he_ xepproeehed various persons for
pspense£;eg~ the "said Vtelewfilmk But, the amount
eeffexed _9eee9K less than the produatien costs
There§eie;$,hefl*eithdrew the telewfilm free the
v9Vschede&ed9teieeest en 29'Q?_i993.
9'n fie efie eempieieent felt that in eeee if the
9tele~film is split inte 3 episodes; it is easy te
9"get sponsors for weekly serials and therefore, he
f"
6 Cr3.£ 3*5fG%
OE
that he should. not meet P.W.6~Shylaja and if he
tries to meet her to arrange to get the work eene,
he threatened that he would see to it that the §§§g
will net be get done and further the a¢g§;e§C$;§gfL
insisted. to pay the amount demeheed;'ehdfihthett.heflt
would ensure that the work woehd he get a§néf3_3ae
also informed the complainaet hot te eyeah eheetgthe he
demand with anybody else incle&ihguPwWLS§Shyleja«
On 04.11.1993 .'atA afiéuct tae;5 Vylmfl, the
complainant went to DoerderehahetKefid:a, met the
that he coujd s¢;; the episodes to the sponsors; the
accused asked the_eempieihent to give fuli amount of
?5,oao+aa_as'demanaed'b§ him. He again pleaded his
t ifiabiiitf eed at thet time; the aacused asked him ta
give, éfi. xeasia an ameunt of %1;§3Q~8G en the day
"* itseifi ane teh §ay' the remaining ameunt, within a
TR~,week'e "tiee and then enly he weelé arrange Ear
Htgeglittieg and eliettimg time elets Se pieefied ie
*glebi£ity te arrange fee ?1;GG8--§G by 1lti1.i§93 for
h'._ which, the accused agreed. te accept an condition
ifiw
1)
2)
*criminalV"1
ll CEl.A
Whether the prosecution proves that
{.0
('35
C)
J
on 11 11.1993 and on earlier dates,;*1
whether the accused. made a demeedvf<.'E
for an amount of ?5,000*OO
accepted ?1,000--O0 _es-_
gratification ta do epmemteffieiai
favour to the jcompiaifiant
thereby committéd',A an "
punishable under Seetienpp? ef._the€
Act?
Whether g the ;"prese¢gtiofijepferther
proves"'fihet 7the'"aeeeéed- being a
public aeerfienti, fluiifigivthe period
*p1A$gp$t_°_tofi~_Qgfiober 1993;
{bbteinefi_aae peeueiary advantage of
€;gooo«o9= Ly ~efiueing his official
poe1tionx'_and.'fthereby committed
misconduct, punishable
11 egdex Seetiefis l3{l){d) rfw 13{2}
_$§1
axe" the
"~e Qf the Act?
Wfietfiee the appellant has maee set
aey"§r0unds te warrant ietexference
V Gxéer ef
Sufigment and
Vuvpeenvictiem and eeeteeee pessefi» by
:the txiai Judge?
'a§dvj»1
iileéeit 1
and1'
.to£:encé;"
13 "$3.3 367iGe
accused himself was found there and he called the
complainant by referring to his name and asked
whether he has brought ?S,OOO~GG or ?1,000--OO. At
this juncture, P.W.3 was at a distance of aboetpfififi
ft. from P.W.2--the complainant. V
conversation between the
complainant. In response to the efie3tioe.pbeed'hy"1
the accused, the complainant made en effert to pfitt
his hand in the pant pocket te_tahe eat the notes
for payment and at this juncture; the aeeused asked
the complainant to come te the eheehets_for payment.
Thereby, "it, is iEuW}gstheh"eeeplainant and the
accused, whe enteted the ehember and the payment was
made by the een@leinent,tb the accused on demane and
_the tefipted netes were taken by the eeeused with his
l:ight,heeeganevkept the emeunt in his right side hip
'paet"peeke§,pVQ§eg te the extent that there was e
fiemane free the eeeusee, there is eerreberetien of
hneteetietereeted versiee ef the eempleieeetm§'W.2 end
leZee=by'?'fi.3; who is en iedepeeeeet eeeeew witness
hlaed he else epeeks that e.e,2 made an effett te take
5%
3:
He heard 'this ,
accused'MHlendpf.theel
14 Cr?.fi 3:?fS4
UN
out the notes, accused asked to come to his chamber
and thereafter, when the complainant~P.W.2 made the
payment in the chambers off the accused, he came
outside and gave the pre-arranged signal heed
thereafter, the CEI Officials entered the pre@f$e%"l
and seized the tainted notes. The handgw%$he@§f#fi$d
right hand, the left hand, the phree, the hi? peehetf}
of the pant of the accused were taheh in ghé~go§$eef
carbonate liquid and the "tu,rr'1'e,d'.=
colour. So, these~_ all""*etreemstences"; would
substantiate the versionh cf fthet prosecution as
regards the=peymeht<and*ecceptahce of the money by
the accueed; vlt is thee that actually at the time
when the amcgnt fies paid by the complainant to the
_aecueefi, P,W.3 was net present, but that itself is
dnot'eufflcleet;te discard the evidence of the test
the: has been eehducted by taking the heedwwashee in
fthe eediue carbonate liquid and the liquid turned te'
4"el§ihk,eeleer, whieh is a eenftrmetive teet regarding
leetee-heving been treneferrefi frem the hands ef the
f":eeplainaet te the eeeueed and thereafter, the netee
15 Cr3.£ 35?KG%
have been seized from the accused, which were kept
in his right side hip pocket. So, the accefitefice is
very much clear from this aonsistent vezsion afidetheK
circumstances stated supra. Therefore['$ham'efVQpeh
opinion that the evidence of P.N;Z'heenheefi?ffi1;y
corroborated by the evidence hef P.Wf3twendf theh
circumstances stated above. 7
6. one Balaraflt %§xfifl¢:éUgfi§#55f the script of
telemfilm "Vidhaha" gene :fihgm eeriét Jwas seld by
Balaram to itfl§e¥¢eepia;nee§e teffi an amount of
?22,000-00 cg £§% fie? i§§é{: %0; once when Balaram
sold the eetiet te the eemplainant, the evidence of
Balaram 3g§= net Zeeeeegaiy for the purpose of
establiehinfi" them guilt? ef "the accused. Though a
"centefitiea has beéfi raised that he is an important
hwitness/ahefiieg sold the scri§t to the complainant
an&Kthe cemeieinent having been stated Se befere the
Court hedge else in his complaint, te prove this
V'eepeéE the examination ef Be;eram is ac: necessary.
a"e: -Sc2teiee; the ceuneel centemdefi that Sathyu, the
g§feducer of teiewfilms is not examined. it is he who_
16 C:.l...%'l._ 3
£3"\
alib-
advised. the complainant to approach the CBI
officials to lodge a complaint with regard to the
demand ef bribe. When the complainant himself has
approached on the advise of this person, E dp net
think that the evidence of Sathyu is neceeeafypihi-
any manner to prove the guilt of the accnsedl aThese'*
are all incidental things, whidh need net tequife 7
any corroboration. The evidence as e.w.2 itself igp'
sufficient to accept the, Pversien A that hflthe
complainant purchased. the $efibe'udf the "tele~film
"Vicihaha"' and that sathyfi _ead{:rfLe'ed the'g€:'Cmplainant to
approach the Chi officials.
7, A"Thirdlg;lptheJ"iearned counsel for the
appellant would contend that as on the date when the
haneunttisfsaflé to hafie been accepted, the accused
was het2aVEte§;awme Executive in the Camera Sectien
'f*Vdef bonidarshahfi Kendra and therefere; it is his
fu_eeatentiea>that when he had he cempeteecy tc do the
'vpeefknlefip the cempiainantg the ecceptanee hae fifi
dg relevance and it cannot amount te an efifence under
"a;é<$£:on 7 er under Section 23:1; <91} rfw. 13{2; of
fif'
gem
17 CFl.£ 36?f8
:$';~
the Act. On this aspect of the matter, the learned
counsel for the respondent has placed reliance of
the decision reported in [2GO?33 Supreme Court Ceees {Cri.} 475 [Girija Prasad (dead) by LRS. Vs. Stete of M.P.}, wherein the Apex Court while coeeidé§e$g1t the provisions of Section 4 and 5(1)(d}weefwMgS{2lp of the Prevention of Corruption ect4pl$e7{theeQ,thet;? if once it is proved thet_ the oemountJWne$ zbeeol received by the accused, 'the* preéeepteohhpohder Section 4 would get att$ectedl't;efifi§ch e oeee, it would. be wholly immatetiel;::fiEethe%d. the said acceptance"of the emoufit'was fox him or for someone else. It Awould *g;s¢,'eg" immaterial whether the accused was ex was_notVih a position to oblige the oomplaieaht. Now, to consider the principle laidm down win _the, decision referred to supra, io the oontext_.of. the, eiroumetanoes of 'this case, ?.W.6~ Shyiaje was the Programme Executive on the date when '.fthe'bxibeVees aeeepted. But, anyhow; even prior to ?,§;§=teking the ohexge as Frogremme Executive; it 'weS_the eeeueed, who was Programme Executive and he MW 18 ?:L.A 367/ (:3 4 had demanded the amount when he had an authority and later, he also warned the complainant not to approach P.W}6wShylaja, the §rogramme Executive, for this work as he is able to get the work done hy the Splitting the telewfilm into different episcdeeg ale "
this context, I do not think that thetefeiefl any "
necessity to establish the competehefi'td;decthecwetg_T of the complainant.
8. The learned counsel-fieuld cahtehd that the accused, has been falsely implicated. afid-_thet the accused had given a lleafiK_ef}.?i}QUO&0O to the complainaht_ ahdq_9e_ the_ date when the alleged incident tcek _p1ace}* the 'complainant had come to repay the loahuef*?1gd0§»OO received. This is the hiemediateifextlanataehd given by the accused after seizfixe *efA the, hates er ihterxegation by the CBE "vkeffieiale.ldlt"as relevant te mete that the accused ._f,wae a Sanger Qfficer in §oerdarehen Kendra aed even d'befeted§the eeid incident the aeeueed had me V*,eCquaintance with the ecmplaieant. it was fer the V"¢A first time that the complainant had gone for a werk 5%"
V D 3.9 ?67fW.é with the accused. In the circumstances, rather it is improbable to accept the version of the accused that he had paid the loan and it was being retuthned on that day. As could be seen from the examination of the witness P.W.2, nothing suggested as to when and at what date, the loan was advanced suggestions made have been'; $'peci'fi<'::a11yVeleieied the complainant in his eviideihce.
denied itself is not. Vtc._&.ovetV4Ac<E.#Vne the presumption that arises uncizlierftvse'et.i_o'hA_'.'V2>0';of the Act.
In the ci'retm1sAtjanee:.s,- o'f~~the opinion that the version of theva¢;§i1séa_"a1;5-cf: 'the return of the loan amount canno'-:._' ii:>.;e accepi',e.d in View of the abundant 4_materi.a.i doe recfolrztto 'establish that he had demanded an .amo;,m+; '.<;;;.=€4V."€f,5§,€3OG~OG and accepted an amount of ti Geeéee egg tee week te be done en i1,iia1§§3, §--,_ T§::e_t::earned eeerzeel fer the appellant hae "«.:'jV~-'zfigeeed e§e,fi,:;i.eeee er: the fieeieien ef the epex Seer:
'rejeerteégi in {2§§2}5 Sepreme Court 86 fiubash Earbat ,,.,h./Senvane Vs. State of Gujarat}, wherein it has been 2.0 3' '? /-'1/3 a; U':
(3\ observed by the Apex Court the word "Obtains" pecuniary advantage - contemplates an element of effort or initiative on the part of the receive; of the advantage. In this case, according' to_speeoh witness, when accused asked the complainant to oenexf in the evening and started going towards toifiete the!"
complainant followed him and gave hen s§mg£peeg.£e§e;? his pocket which accused put:§n hie pocket} held in these circumstances that f£oe7 this levtdehgem it cannot be inferred that the eoofieed med deeended any amount from the complainant or that he had obtained the same_a """ "~IhT the <cese= referred to, the ganohw witness never steted that the accused demanded any amount from the compieinent nor the complainant had in his ereeswexemination supported the preeeeution version the demand and acceptance of the amount by the eeeueedfa_Ee"these circumstances? the eenviotiee ees set a.-;;§.i:.de'L From the facts itself it eeuld be u"3eei6_ thee ~the peieeiple ie not eygiieeble te the feetevee hand ee thexe is empie materiel te peeve dthe_demene ef amment by the eeceeed from §.W.2 in If {U 3""
\ ' 3 .;
35\.>J ON 1 L3 3 the presence of P.W.3 and the subsequent test that have been done by taking hand-wash, pocket wash and purse wash.
10. The learned counsel would contend thee egfi' the charge framed, there is referehg§rlteQefihe--e ingredients of Clause (1) of Secfiiee"13{1){d® of fihefix P.C. Act, 1988 and that the chaege has haenwfraeedh' in resgect of Clause 3 of Seetionhl3(i){dfhefWehe Act. The perusal of the secchea§fifl#9§~£gveais the ingredients that the the Official position as publ§é_sepéahti ebfieened fer himself a pecuniary advahiage of fiygcneno. These are ali the requiremente_hbothg fiedeetléleuses (i) and (iii) of Section,13(1){d; ef the hat. in the circumstances, 5: ea hoe fine any eefer in the secend charge as it :s"»h___u'n;d_.ér. 13{1){e; r/'w. 13:2} of the Act. hgafhe ev§éen¢eeefJP.Weg2 and 3 is consistent, eegent _hH¢end'-there hie no fieparture in xnateriai eartieeiers " fire: eke ellegatiene made ie 'the eemyieinte fihe VV_teie§fi1ma cassettes were seized aieng with the V*,A fiisitor's register maintained in the office premises 5:4;
22 of Docrdarshan Kendra and the ample material placed on record proves beycnd reasonable doubt that the accused has committed the offence as stated supra. So far as the sentence is concerned, it is the_ submission of the learned counsel that the=eigoi¢eeLf. imprisonment for 3 years is on higher side=end"thetw "
the sentence may be reduced h.e§Aj:i'nt;*ee..'.'a..' approach. Taking into consideratiee"thefheeefe of the offence, the amount of htihe etct; i'am cf the opinion that the sentencefueftcgffyeatelftegorous imprisonment has to be reduced to ehe year for each of the two offecceejeceefgrming the fine amount and the default "$entehe§_",4dIh the circumstances, I answer bath fioiat-Noel} and 2 in affirmative, and fteint'He}3%ine9artl§Waffirmative and partly negative age_er¢¢eéedt54§a;s the fellewieg:
ORfiER the. eggeel ie eertly allewed, eeefirmieg the 'v cefivictien of the appellant for the effenee 4dgVpeniehahle under Secticns 7 and 33(2) rfw. 13(i)(d}