Karnataka High Court
Shri Hanamant Naik Bhimanaik Patil vs The State Of Karnataka By Its Spp on 23 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23rd DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2689/2006
BETWEEN:
Shri. Hanamantnaik Bhimanaik Patil,
Occ: Village Accountant,
R/o.Yakkundi, Tq: Savadatti,
Dist: Belgaum. .... APPELLANT
(By Sri Gurudev.I.Gachhinamath, Advocate)
AND:
The State of Karnataka,
by its State Public Prosecutor,
Advocate General's Office,
High Court Building,
Bangalore -560 001. ...RESPONDENT
(By Sri M.B.Gundawade, Advocate)
This Criminal Appeal is filed under Section 374(1) of the
Code of Criminal Procedure, 1973 by the advocate for the
appellant against the judgment dated 09.11.06 passed by the
Special (Prl.Sessions) Judge, Belgaum, in Spl.Case No. 26/97 -
convicting the appellant/accused No.1 for the offences
punishable under Sections 7, 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act,1988 and sentencing him to
undergo R.I. for One year and to pay fine of Rs.500/- I.D., to
pay fine to further undergo S.I. for 3 months for the offence
punishable under Section 7 of the Prevention of Corruption
2
Act,1988 and further sentencing him to undergo R.I for One
year & to pay a fine of Rs.500/- I.D., to pay fine to further
undergo S.I. for 3 months for the offence punishable under
Section 13(1)(d) read with Section.13(2) of the Prevention of
Corruption Act,1988. Both the substantive sentences imposed
against A.1 shall run concurrently.
This appeal coming on for Hearing this day, the Court
made the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent.
2. The appellant was accused no.1 in the following circumstances:-
One Modinsab Pattan had purchased two acres of land in RS No.147/2B from one Chanbasavva Madiwalar and had approached the Village Accountant, Accused no.1 herein, of Yakkundi to delete the name of the seller and to effect the mutation entry in the name of the purchaser, namely, the complainant, in the record of rights. It is alleged that accused no.1, the appellant herein, had demanded a bribe of Rs.500/- to process the application of the complainant. Since the complainant did not choose to pay bribe, the complainant had 3 approached the Deputy Superintendent of Police, Lokayukta who in turn, after registering a case, had directed the complainant to produce the bribe amount of Rs.500/- and after securing the presence of panch witnesses, had carried out the exercise of demonstrating the manner in which accused no.1 would be trapped, while demanding and accepting the illegal gratification and accordingly, had treated the currency notes brought by the complainant with phenolphthalein powder in the presence of the panch witnesses and it was demonstrated that when the said tainted notes were handled and if the hands were washed with Sodium Carbonate solution, would turn pink and thereafter had drawn up an entrustment mahazar and had further instructed the panch witness and the complainant as to the manner in which the bribe amount would have to be paid only on demand by the accused and thereafter, the entire party had proceeded to the office of the accused.
It is the further case of the prosecution that the complainant PW.1, along with a panch witness PW.2, had approached the table of the accused - appellant and when the 4 appellant demanded whether the complainant had brought the bribe amount and the complainant having answered in the affirmative, was directed to keep the currency notes on his table and in turn, the complainant is said to have asked accused no.2, who was a private person, to keep the money in his pocket and accordingly, accused no.2 had put the money in his pocket, at which point of time, on a pre-arranged signal by the complainant, a team of Lokayukta officials had immediately apprehended both the accused and had washed the hands of accused no.2, on the instruction of the complainant that the money was directed to be kept on the table of the accused and in turn accused no.1 had directed accused no.2 to keep the money with him, who had in turn kept it in his pocket. The hands of accused no.2 were washed in Sodium Carbonate solution, which immediately turned pink in colour. The same was sealed and marked to be produced at the trial. Similarly, the currency notes were also verified against the numbers originally reflected in the entrustment mahazar and the same were found to tally. Accordingly the same were also sealed 5 and marked. The photo-copy of the file pertaining to the complainant was also marked in evidence to be produced at the trial. Thereafter, a trap mahazar was drawn up. On the basis of the said material evidence, a charge-sheet was filed against the accused. Both the accused had pleaded not guilty and claimed to be tried. It is in that background that the prosecution had examined six witnesses and marked Exhibits P.1 to P.13 apart from Material Objects, MOs.1 to 5(a). On the basis of the said material evidence and rival contentions, the following points were framed for consideration by the trial court:
"1. Whether prosecution has proved beyond reasonable doubts that A.1 being a public servant working as village accountant at Yakkundi village on 25.06.1996 demanded bribe of Rs.500/- from the complainant C.W.1 Modinsab Hayatsab Pattan resident of Dhupdal, for deleting the name of Chanbasavva Balappa Madiwalar and to enter the name of complainant to the agricultural land bearing RS No.146/2B of Dhupdal village and in pursuance of the said demand, he on 26.06.1996 at 02.30 p.m. in his office demanded the said bribe of Rs.500/-6
when the complainant approached him and when the complainant offered him to pay the same, accused asked him to keep the bribe amount on his office table and then asked A.2 to take the same and accordingly A.2 took the same and after counting kept them in his back pocket of the pant, thereby A.1 demanded and received the said bribe through A.2 as a gratification, other than legal remuneration as a motive or reward to show official favour needed by the complainant as stated supra and thereby they committed an offence punishable under Section 7 of the Prevention of Corruption Act,1988 read with section 34 I.PC.?
2. Whether the prosecution has proved beyond reasonable doubts that the accused no.1 being public servant i.e. village accountant of Yakkundi village, on the above said date, time and place demanded and accepted bribe amount of Rs.500/- through A.2 from the complainant as a gratification, other than legal remuneration as a motive or reward to show official favour needed by the complainant as stated supra and obtained pecuniary advantage to the tune of Rs.500/- and thereby committed an offence of criminal misconduct punishable under Section 13(1)(d) read 7 with Section 13(2) of the Prevention of Corruption Act,1988?
3. Whether there is a valid sanction to prosecute A.1 ?
4. Whether the prosecution has further proved beyond reasonable doubts that A.2 being private agent of A.1 accepted for A.1 a gratification of Rs.500/- from the complainant as a reward for inducing A.1, public servant/village accountant for deleting the name of Smt5.Chanbasavva Balappa Madiwalar and for entering the name of the complainant to the record of right register pertaining to RS.No.146/2B of Dhupdal village and for issuing an extract to that effect and thereby A.2 committed an offence punishable under section 8 of the Prevention of Corruption Act ?
Points 1 to 4 were held in the affirmative and both the accused were convicted whereby accused no.1 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- for an offence punishable under Section 7 of the 8 Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC' Act, for brevity) and rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- for offences under Sections 13(1)(d) and 13(2) of the PC Act. Accused no.2 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- for an offence punishable under Section 8 of the PC Act. It is the conviction and sentence against accused no.1, which is under challenge in the present appeal.
3. The learned counsel for the appellant would contend that the court below has failed to view the material evidence, in support of the case of the prosecution, in its right perspective as also the admitted circumstances, in order to examine whether the charges had been proved beyond all reasonable doubt since from the very admitted circumstances, it cannot be said that the charges have been proved beyond all reasonable doubt as against the appellant. The very complaint at Exhibit P.1 is not duly signed by the complainant and no sanctity could be attached to such a complaint in as much as the allegation that 9 there was a demand for bribe and it was duly accepted by the appellant would have to be established with reference to the same and in the absence of the same having been duly signed by the complainant, it cannot be cited in support of the case of the prosecution, as Exhibit P.1 cannot be termed as a complaint at all and this would vitiate the entire proceedings that have followed. Though it is alleged that the First Information report having been duly signed would take away any such difficulty in the complaint not having been signed by the complainant. The learned counsel would contend that a mere signature found on the First Information report would not render Exhibit P.1, a complaint in the absence of such signature. Further, the primary allegation is that the appellant had demanded illegal gratification of Rs.500/- for doing an official act. There is material on record, including the admissions of the complainant himself, to demonstrate that as on the date of the trap, there was no official act which could have been performed by the complainant in the absence of the file having been cleared by the Tahsildar and since the file was with the office of the 10 Tahsildar, the question of the appellant doing any official favour in relation to the mutation entries being effected in favour of the complainant did not arise, as any such official favour could not be extended till such time that the Tahsildar had processed the file and since, even according to the complainant, the file was pending with the Jurisdictional Tahsildar, the entire case of the prosecution that there was a demand and acceptance of the bribe, when to the knowledge of the complainant it was evident that there was no immediate prospect of the mutation entry being effected by the appellant till such time the Tahsildar had given his nod to the process. Therefore, there is evidence to the effect that it was understood both by the complainant and the appellant that it would take a minimum of 30 days for the Tahsildar to send Talati to the Tahsildar's office and it is only thereafter that the mutation would be sanctioned, after hearing objections, if any, received before the expiry of 30 days. This glaring circumstance which is not disputed by the complainant has been completely overlooked by the trial court. Secondly, the commission of the 11 offence by the appellant could have been established not only by the demand made of the illegal gratification, but by the receipt of the gratification by the appellant. It is not the case of the prosecution that the appellant had received the money from the complainant. It is, on the other hand, the case of the prosecution that though the appellant is said to have demanded the gratification, the said currency notes were kept on the table of the appellant and that the appellant, in turn, had directed accused no.2 to put the money in his pocket. It is also the case of the prosecution that accused no.2 was sitting at the desk of accused no.1. If this be so human conduct involving such illegal transactions, it would be expected that the money is surreptitiously handed over by the complainant to accused no.2 and not openly placed on the table of accused no.1, who was on duty, in the presence of others, who would also be visiting his office and thereafter accused no.1, instructing accused no.2 to put the money in his pocket, is an elaborate exercise, whereby accused no.1 would have exposed himself. This can hardly be accepted as being normal human conduct, especially, 12 when the persons concerned are acting illegally and surreptitiously. This aspect of the matter has been accepted by the trial court, even though it is wholly improbable that this would have been the expected conduct of the accused in receiving illegal gratification while on duty and while sitting at his official desk. The Lokayukta officials having apprehended accused no.2 and recovered the tainted money from the said accused and not from the appellant. The appellant having immediately denied of having demanded or accepted any bribe and the circumstance being the money was actually recovered from accused no.2, it cannot be said that there was a nexus established between accused nos.1 and 2. Accused no.2 was not an official employed with the Village Accountant's office. It is also not the case of the prosecution that he was a regular employee or a subordinate of accused no.1. On the other hand, it was vaguely stated that he was working at the Village Accountant's office, though he was not officially employed. It is not stated as to what was the nature of the work that was carried on by accused no.1 at the Village Accountant's office. 13 Though he is billed as an agent of accused no.1, there is no material on evidence to indicate that accused no.2 had been receiving monies as illegal gratification on behalf of accused no.1 in similar transactions. In the absence of any such material, the learned Counsel for the appellant would contend that, to characterise accused no.2 as an agent of accused no.1, who has received the gratification on his behalf, cannot be readily accepted as it was necessary to establish that the gratification has either been received by accused no.1 or by accused no.2 on his behalf. It is this primary ingredient, namely, the relationship between accused no.1 and accused no.2, which was to be established in the first instance. As there is no such connection established, except to contend that he was regularly employed in the Village Accountant's office as a private person unofficially, it cannot be accepted that he was acting as an agent of accused no.1. If this nebulous relationship between accused no.1 and accused no.2 alleged by the prosecution is eschewed, then the ingredients of offences punishable under Section 7 or section 13(1) read with Section 14 13(2) of the PC Act would not be established at all, let alone beyond all reasonable doubt. Accused no.2 not being a public servant, it cannot be accepted that he had acted as an agent at the behest of accused no.1 . He can only be treated as an absolute stranger in whose custody the tainted money may have been found. It is not for accused no.1 to explain the circumstances, under which the money has been found in his pocket. There is one other circumstance, namely, that it was alleged that accused no.2 picked up the amount from the table with his right hand and had put the currency notes in his pant pocket, but still, though he had not touched the currency notes, with his left hand, when his left hand was washed with Sodium Carbonate solution, it had turned pink in colour. Therefore, the case of the prosecution is suspect and it is clearly a case foisted on accused no.1, with the active assistance of accused no.2 for reasons best known to the complainant and the prosecution. It is also claimed by the appellant that the complainant was peeved with the delay in the mutation entries being effected in his favour and he held the complainant 15 responsible for the delay and therefore, wanted to teach him a lesson and hence had engineered the entire episode and it could not be said that the offences punishable under the relevant provisions have been established beyond all reasonable doubt and therefore, seeks that the judgment of the trial court be set aside and the appellant acquitted of the charge.
4. While the learned Counsel for the respondent would seek to justify the judgment of the court below.
Insofar as the grounds raised in the appeal are concerned, he would submit that though the complaint was not signed by the complainant, the fact that the First Information Report had been duly signed by the complainant would cure the defect, if at all, insofar as the complaint not having been signed by the complainant. In this regard, reliance is placed on A.W.Khan vs. The State, AIR 1962 CAL 641. The learned counsel would submit that the defect, if at all, can be called a defect was a curable defect and is not a defect, which would go to the root of the matter. The complaint is made in order to set the wheels of 16 law in motion and that having been activated and material having been gathered in support of the complaint, the findings also having been arrived at by the court below, the absence of signature in the complaint pales into insignificance, especially, since the First Information Report was duly signed. Insofar as the primary contention that there was no nexus between accused no.1 and accused no.2 and that accused no.2 was not a regular employee of the Village Accountant's Office and that therefore, the charges against accused no.1 cannot be established, without the nexus between the accused being established in the first place, also is not a contention which is tenable. It is pointed out that the tenor of Section 13(1)(d) would require that there was a demand and acceptance of the illegal gratification by the accused or anyone on his behalf. Therefore, accused no.2, who was very much present at the table of accused no.1 and who, according to the complainant, as well as the shadow witnesses, was directed by accused no.1 to pick up the money from the table and keep it with him brings home the charge with unerring certainty. As the trap was 17 conducted immediately and the money was found in the custody of accused no.2, the presence of accused no.2 in the Village Accountant's office is not otherwise explained. He was not there on any other job except that he was regularly utilised by accused no.1 in such nefarious activity. The absence of material to establish that the accused had similarly received monies through accused no.2 is not material, when the allegations in the present case on hand have been duly established, would certainly give rise to a presumption that it would have to be held against accused no.1. Insofar as the contention that the file was not available with accused no.1 and that it was pending with the Tahsildar and it would take at least 30 days for the file to reach accused no.1, is also not a contention that is acceptable, as initially, it was for the accused no. 1 to forward the file to the Tahsildar and it was that initial work, which was pending and withheld by the appellant on the footing that unless the illegal gratification was paid, he would not forward the file to the Tahsildar. It is in this background that illegal gratification had been paid. Further, Exhibit P.6, 18 would clinch the circumstance that the file had been sent by the Tahsildar to the accused and therefore, there was every motive for the appellant to demand illegal gratification. Therefore, the contention that the file was not pending before accused no.1 is misleading and incorrect. He would submit that there is no warrant for interference at the instance of the appellant. Insofar as the conviction and imposition of punishment against accused no.2 is concerned, the same was challenged by the said accused and hence would seek dismissal of the present appeal.
5. In the light of the above contentions, insofar as the first contention that the complaint was initiated, since it was not duly signed by the complainant and that it could not be treated as a complaint at all, is rightly answered by the learned Counsel for the respondent that when the First Information report is duly signed by him, the complaint not having been signed would lose its significance is to be accepted, for it is possible that there may be an oral complaint before the jurisdictional police or other authority, such as the Lokayukta, 19 who may have reduced the complaint into writing and which is treated as a First Information Report and if duly signed by the complainant, that would suffice to meet the requirements of law and therefore, in the present case on hand, the complaint not having been signed by the complainant, may not have much significance. Insofar as other contentions on merits that the file of the complainant was not pending with accused no.1 is also not a contention that can be readily accepted. But however, insofar as the demand and acceptance of bribe is concerned, even though the complainant as well as the shadow witness have tendered evidence, it has remained unimpeached that the appellant had demanded illegal gratification and that it was placed at his table and thereafter, he had directed accused no.2 to keep the same with him and thereafter accused no.2 having picked up the currency notes and having put it in his pocket, would not establish that there was acceptance of the bribe amount by the appellant, unless it was also established by the prosecution that accused no.2 was acting as an agent of accused no.1, except alleging that accused no.2 was a private 20 person, who was a regularly employed unofficially in the office of the Village Accountant, there is no material to indicate as to the nature of his duties or in what capacity he was employed and as to who was paying him for such work done. In the absence of further material to show that accused no.1 was routinely engaging the services of accused no.2 to receive such illegal gratification for favours similarly done, it cannot be presumed that accused no.2 was acting as an agent of accused no.1. Insofar as the contention that there should be a presumption of the receipt of money by accused no.1, since the demand made by the accused has been established by the evidence of PWs - 1 and 2 can also not be accepted, with reference to Section 20 of the PC Act, though Section 20 provides for a presumption as to a public servant accepting the gratification other than legal remuneration. This is only in respect of offences punishable under Sections 7 and 11 or Clause (a) and (b) of Section (1) of Section 13 of the PC Act. Though there have been decided cases and affirmed by the Supreme Court, where it has been held that the accused is 21 guilty of an offence punishable under Section 13(1)(d) read with Section 13(2), if the recovery of currency notes are made from the accused and that would sufficiently prove his guilty conduct and that the presumption under Section 20 could be pressed into service. It cannot be said so in the present case on hand, since not only is the offence punishable under Section 13(1)(d), the money recovered is also not from the custody of accused no.1, but from the custody of accused no.2. Therefore, a presumption which would result in the appellant suffering the punishment prescribed for an offence, which is of a serious nature cannot be accepted without there being establishment of a primary fact that there was a nexus between accused no.1 and accused no.2. As already stated, that relationship has not been established. It was necessary for the prosecution to lay the foundation in this regard as to accused no.2 having been involved from the beginning as a go-between for the complainant and accused no.1. That was not the case of the prosecution. It is for the first time that accused no.2 is present in the office of accused no.1 and that too, he was found to be 22 sitting at his desk when the tainted money was placed on the desk and it is later alleged that accused no.2 was directed by accused no.1 to keep the money with him and this by itself would not establish the nexus between accused no.1 and accused no.2. Therefore, in the absence of such nexus being established, though it is possible that an accused may obtain for himself or any person in his behalf has obtained such illegal gratification, it is necessary that the initial relationship between the accused and the person who receives illegal gratification on his behalf is established, in order that the charge may be proved beyond all reasonable doubt against the accused of having received the illegal gratification, albeit, by proxy. Therefore, in the present case on hand, this essential requirement not having been established, it cannot be said that the money which was recovered from the custody of accused no.2 was received by him on behalf of accused no.1 and at his behest, as illegal gratification. In that view of the matter, the entire case of the prosecution would have to fail.
23
Consequently, insofar as the appellant is concerned, the appeal is allowed. The judgment of conviction against the accused-appellant is set aside and he is acquitted of the charges. The fine amount, if any, paid by the appellant shall be refunded.
Sd/-
JUDGE nv