Karnataka High Court
State Of Karnataka vs Channakeshavaiah S/O Late Javaregowda on 9 February, 2015
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.371/2008
BETWEEN:
State of Karnataka
By Lokayukta Police
Hassan .. APPELLANT
(By Sri Venkatesh P Dalwai, Spl. P.P.)
AND:
1. Channakeshavaiah
S/o late Javaregowda
Aged 48 years
Superintendent of Accounts
No.2, Hemavathi Right Upper
Canal Division, Hallimysore
Holenarasipura Taluk
Hassan District.
2. H M Vijayakumar
S/o K Madappa
Aged about 45 years
First Division Assistant
No.2, Hemavathi Right Upper
Canal Division, Hallimysore
Holenarasipura Taluk
Hassan District. .. RESPONDENTS
(By Sri Kartik Yadav U, Adv. for
Sri S K Venkatareddy, Adv.)
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This Criminal Appeal is filed under Section 378(1) and
(3) CR.P.C praying to grant leave to file an appeal against the
Judgment dated 24.10.2007 passed by the Prl. S.J., and Spl.
Judge, Hassan in Spl.Case.No.54/2002 and convict the
respondent/accused for the offences punishable under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention
of Corruption Act, 1988.
This Appeal having been heard and reserved for
orders, coming on for pronouncement of judgment, this day,
the Court delivered the following:
JUDGMENT
This appeal is preferred by State of Karnataka by Lokayuktha police, Hassan being aggrieved by the judgment and order dated 24.10.2007 passed by the learned Spl. Judge, Hassan in Spl. Case No.54/2002 acquitting respondents-accused Nos.1 and 2 for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 r/w Section 34 of IPC.
2. Brief facts of the prosecution case are that during the year 2001 accused No.1 was working as Superintendent of Accounts and accused No.2 was working as First Division Assistant at Hemavathi right 3 upper canal division, Hallimysore, Holenarasipura Taluk. P.W.1-R.Jagadeesh approached the respondents-accused persons to discharge him from the charges leveled against him and to hand over revised charge list and also to recommend a letter to their superiors stating that stock is in tact. For doing the said official favour, accused Nos.1 and 2 demanded Rs.5,000/- from P.W.1. On 22.5.2001 at about 1.30 p.m. accused No.1 demanded and accepted bribe of Rs.3,000/- and accused No.2 demanded and accepted bribe of Rs.2,000/- from P.W.1 and at that time, they were caught redhanded by the Lokayuktha police and were accused of the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 r/w Section 34 of IPC. After conducting investigation the Investigation Officer has filed the charge sheet against the respondents for the said offences and the trial Court framed charges. Trial was conducted and after considering the materials both oral and documentary, ultimately, the learned Special 4 Judge acquitted the accused for the said offences. Against the said judgment and order of acquittal, State has preferred this appeal on the grounds mentioned at Sl.Nos.1 to 7 of the appeal memorandum.
3. Heard the arguments of learned Spl. P.P. for Lokayuktha and also the learned counsel appearing for respondents-accused Nos.1 and 2.
4. Learned Spl.P.P. during the course of his arguments submitted that though the prosecution placed acceptable material by way of oral evidence of prosecution witnesses with regard to demand and acceptance of bribe amount, the Special Judge has wrongly observed that prosecution has not at all established demand and acceptance of bribe amount with cogent and satisfactory material. He has submitted that the complainant was posted to look after the stores since the person in-charge of said stores had expired and thereafter, when one Krishnappa was 5 posted permanently as store keeper in his place and complainant handed over the charge to him, there was shortage of materials kept in the store and in that connection when complainant requested the respondents to prepare the fresh charge list and absolve him from the liabilities, they demanded the bribe amount. He has submitted that the trap mahazar was conducted and tainted currency notes were seized from the possession of respondents 1 and 2 and when their sodium carbonate solution hand wash was taken, the same turned into pink colour. Even the FSL report is positive and supports the case of prosecution. All these aspects were not properly appreciated by the trial Court. Hence, it is submitted that the judgment and order of the trial Court be set aside and respondents-accused nos.1 and 2 be convicted for the above said offences.
5. Per-contra, learned counsel appearing for the respondents during the course of his arguments submitted that the prosecution has failed to establish 6 the very demand and acceptance of the bribe amount. No work of the complainant was pending with respondents to demand bribe amount and to show official favour to the complainant. Mere recovery of the amount from the possession of accused persons is not sufficient to come to the conclusion that there was demand and acceptance of bribe amount. It is submitted that P.W.3, the shadow witness has not at all supported the case of the prosecution. The only evidence regarding demand and acceptance of bribe is P.W.1-complainant, which is not trustworthy to rely upon. Even there is no corroboration by the independent witnesses regarding the allegation of demand and acceptance of bribe amount by the respondents herein. The trial Court has properly appreciated the entire materials and has rightly acquitted the accused. Hence, there is no merit in the appeal and the same may be dismissed. In support of his arguments, learned counsel for respondents has relied upon the decisions reported in i) 2004(2) KCCR 7 1233 in the case of D Rajendran Vs. State of Police Inspector, B.O.I ii) 2005 Crl.L.J. 1136 in the case of State of Himachal Pradesh Vs. Sukhdev Singh Rana.
6. I have perused the oral evidence of P.Ws.1 to 6, documents Exs.P1 to P14, materials objects M.Os.1 to 13, judgment and order of the trial Court, grounds urged in the appeal memorandum and also the decisions relied upon by learned counsel for the respondents-accused Nos.1 and 2.
7. To establish charges under Section 7 of the Prevention of Corruption Act, 1988 prosecution has to establish with satisfactory material that there was demand and acceptance of the bribe amount by the respondents from complainant in order to show him official favour with regard to the work said to be pending with respondents 1 and 2. For this, let me refer to the relevant portion of oral evidence of the prosecution witnesses.
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8. P.W.1 R Jagadeesh-complainant has deposed in his evidence that he know the accused persons. When he was working in Halli Mysuru Sub-Division, the storekeeper S.H.Karki expired, as such, he was entrusted with the charge of said store. In that connection, accused persons along with another clerk told the complainant to prepare charge list. For preparing the said charge list he requested accused Nos.1 and 2. Then he himself took charge of the store and he was in charge up to June, 1999. Thereafter, one Krishnappa was permanently posted as a storekeeper and on 2.7.1999 he handed over charge of the store to said Krishnappa. Then the accused persons along with other two persons alleged that there is shortage of items kept in the store and asked the complainant to correct and to prepare the charge list. The accused persons demanded Rs.12,000/- bribe amount and thereafter, it was agreed to Rs.5,000/-. As such, he gave complaint before Lokayuktha police as per Ex.P1 and also produced Rs.5,000/- before police. He has also 9 deposed about the entrustment mahazar Ex.P2 and also identified his signature as Ex.P.2(a). He has deposed that he along with one Earanna went to the office at Halli Mysore between 11 and 12 in the noon, at that time, accused Eregowda was not in the office and thereafter, they went to the office of accused persons at HRP No.2, and they were in the office. At that time witness Eranna was also with him. He spoke to accused No.1 Channakeshava and gave Rs.2,000/- and informed him that Eregowda was not in office, for which, accused No.1 asked the complainant to give that amount to him and as such, he gave Rs.1,000/- i.e., totally Rs.3,000/- to accused No.1 and thereafter, he gave Rs.2,000/- to accused No.2 Vijaykumar. Then as instructed, he came out and gave signal. At that time public were making galata in front of the office and on hearing the same, accused tried to throw bribe amount outside the window, then Lokayuktha police came and caught hold of the accused persons. By that time, some amount was already thrown outside the window and 10 some amount was in the hands of accused. Then Lokayuktha police taken handwash of the accused persons and also of the clothes of accused. The solution which turned to pink colour was secured in a separate bottle. The amount seized was also kept in the cover and it was sealed. Then the Lokayuktha police came to Hassan along with the samples and other material objects. The accused were left in their office itself. After coming to Hassan, Lokayuktha police conducted mahazar in their office. He has seen trap mahazar Ex.P3 and Ex.P3(a) is his signature. He has seen pant M.O.1 which belongs to accused No.1. Rs.3,000/- cash marked as M.O.2 and Rs.2,000/- cash marked as M.O.3.
9. In the cross-examination, he has deposed that on 17.3.1999 he took charge. He denied the suggestion that there was no order that he has to take assistance of accused persons and he has not taken such assistance from them. He has further deposed that as per the 11 stock account rules accused were authorized to check the store. After Krishnappa took charge from him accused have checked the store and have submitted charge sheet against him and there was an order to conduct departmental enquiry against him in respect of the amount of Rs.1,55,000/- since accused persons alleged that the articles worth Rs.1,55,000/- is found shortage. He has further deposed that on 22.5.2001 at 8.00 p.m. they came to Lokayuktha office and mahazar was typed in the said office. The officer Harisingh gave dictation to prepare mahazar.
10. As per the case of the prosecution, PW- 3/K.C.Eranna is the shadow witness. Perusing the evidence of PW-3, he has not supported the case of prosecution. In the examination in chief, when the Spl.PP put the case of the prosecution, he went on stating that he does not remember since he had retired six years back and not having the memory power. Then, this witness was treated as hostile and cross examined 12 by the Public Prosecutor, when the suggestions were made to him, again he deposed that it is not in his memory.
11. Even during the course of cross examination of PW-3, nothing has been elicited from his mouth to believe the story of the prosecution that he acted as a shadow witness and accompanied the complainant to the office of the accused persons. Therefore, regarding the demand and acceptance of the bribe amount the evidence of PW-1 has to be considered.
12. Perusing the evidence of PW-1, which is already referred above in detail. He has deposed that they went to HRP No.2 office of the accused persons and accused persons were in the office and at that time Eranna was also present. He spoke to accused No.1 Channakeshava and gave Rs.2,000/- and informed him that Eregowda was not in office, for which, accused No.1 asked the complainant to give that amount to him and as such, he gave Rs.1,000/- i.e., totally Rs.3,000/- 13 to accused No.1 and thereafter, he gave Rs.2,000/- to accused No.2 Vijaykumar.
13. Perusing the investigating material, the evidence of PW-1 is also not worth believable. Because he has stated that he gave the amount into the hands of accused Nos.1 and 2, but there is no specific evidence of PW-1 that the accused persons after seeing him demanded the bribe amount for showing official favour in connection with his work pending with the them. Therefore, unless there is specific evidence by the prosecution witness about these aspects, it cannot be said that the prosecution has established demand for bribe amount.
14. As I have already observed above, referring to the evidence of shadow witness/PW-3, it is not helpful to the case of prosecution. Therefore, the evidence of PW-1 is also not corroborated with the independent evidence i.e., the shadow witness/PW-3. 14
15. Even with regard to the place from where the tainted currency notes were seized is also not clear from the evidence of the prosecution witnesses. PW-1 has deposed that the accused persons made an attempt to throw the bribe amount outside, through the window and at that time Lokayuktha police came and caught hold the accused persons. By that time, accused persons have thrown some amount and some amount was in their hands.
16. It is no doubt true, prosecution has produced the FSL report as per Ex.P-11. Perusing the said document, in the result column on page No.2 opinion is given. The opinion is as follows:
Opinion:- The presence of phenolphthalein is detected in both the hand fingers wash of the AGO. But infront of the same it is written in the pen as No.I and II. Who has made this correction and when it was made? No date has been put below the initial. 15
17. Perusing the oral evidence of PW-1, he has not stated in his evidence specifically that after he gave the amount into the hands of accused Nos.1 and 2, they received the amount and then they handled the tainted the currency with both hands.
18. PW-2/Vasudevamurthy, who was also said to be present in the Lokayukta office while preparing the entrustment mahazar as at Ex.P-2, he has deposed in his evidence in examination in chief at para 3 that Jagadish produced Rs.5,000/-, the amount to be paid as bribe. There were 50 currency notes of denomination Rs.100. He was asked to smear the phenolphthalein powder. He was also asked to tell the number of the notes and Eranna to note down the numbers and they acted accordingly. He has further deposed that thereafter, those notes were separately kept in three covers and two such covers were kept in the pant pocket and one such cover was kept in the shirt pocket of the complainant.
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19. Evidence of PW-2 shows that the amount was not kept openly in the pant and shirt pockets, but the amount was kept in the covers. The covers along with tainted currency notes were kept in the pant and shirt pockets of the complainant. He has also deposed that both the mahazars under Exs.P-2 and P-3 i.e., entrustment mahazar and trap mahazar were drawn at Halli Mysore, it means in the office of the Irrigation Department.
20. PW-2 was treated as hostile witness and then he has been cross-examined by the Public Prosecutor. Though it was specifically suggested that Ex. P-2 was prepared in Lokayukta office, he has denied the same. Even it was also suggested to him that he is falsely deposing that the entrustment mahazar was prepared at Halli Mysore, he denied that suggestion also. If his evidence is to be believed, then prosecution has to make out a case that, even to the covers in which the currency notes were kept, were also smeared with 17 phenolphthalein powder, otherwise there is no possibility that when the covers given to accused persons and when there is no specific evidence of PW-1 that accused persons counted the currency notes and handled them with both hands. There could not be any possibility of the hand wash of the accused in the sodium carbonate solution turning into pink colour.
21. The prosecution has also not explained as to what has happened to those covers in which the tainted currency notes were kept.
22. Perusing the evidence of PW-2. During the course of cross examination at para 10 of his deposition, he has deposed that the amount was bundled and kept in the cover but he cannot say the colour of the covers. It was not written on the covers that the amount is to be paid to such and such person. Even it was not mentioned on the covers that which number notes were there in which cover. Along with the cover the notes were kept into the pocket of the 18 complainant. At para 12 he has also deposed when he collected the amount, which was lying outside he has not counted the notes. He has collected two bundles of Rs.2000 each. Both the bundles were lying at different place. Notes were in the cover itself.
23. I have perused the entrustment mahazar Ex.P-2. In the said mahazar also it is not mentioned that the notes were kept in the covers. Therefore, the contents of mahazar Ex.P-2 and the oral evidence of prosecution witness PW-2 are contrary to each other, which is not trust worthy.
24. I have also perused the oral evidence of P.W.6 who is the Investigating officer of this case. He has deposed that on 21.5.2001 at 11.30 a.m. one Jagadeesh, Jr. Engineer, Hemavathi Nala, Halli Mysore called him over phone and informed that the officers working in his office are demanding bribe amount to do his work and that he will come on 22.5.2001 at 7.00 a.m. to give the complaint. Accordingly, he addressed a 19 requisition to the concerned departments to secure two panchas as witnesses for investigation. In his further evidence he has deposed in detail about the complainant coming to his office in the morning on 22.5.2001 and lodging the complaint as per Ex.P1 and also deposed about he introducing complainant to two witnesses and complainant producing the intended bribe amount of Rs.5,000/- and also spoken in detail about conducting the entrustment mahazar as per Ex.P2. He has deposed that on the same day morning at 11.30 a.m. he along with complainant, panchas and his staff left the station and reached halli Mysore at 1.00 p.m. He has also spoken that complainant and the shadow witness P.W.3 went to the office of the accused and gave pre-arranged signal and thereafter, immediately, himself and his staff went to the office of the accused persons and taken hand wash of both the hands of accused No.1 in the sodium carbonate solution which turned into pink colour so also, the right hand wash of accused no.2 Vijaykumar in the said solution, 20 which also turned into pink colour and when his left hand wash was taken in sodium carbonate solution there was no change in the colour of the solution. He has spoken in detail about seizure of currency notes from the accused persons. In his cross-examination, he has deposed that Rs.5,000/- bribe amount was traced outside the office of the accused. Rs.3,000/- was lying at one side and Rs.2,000/- was lying on the other side. He has deposed that he has not mentioned the place where tainted currency notes were lying in the mahazar at Ex.P3, but it is mentioned as behind the window. He has also deposed that complainant is the higher officer of the accused persons. The accused persons were serving as clerks.
25. The materials on record shows that after Krishnappa was posted to take charge of the store, complainant handed over charge to him and at that time it was noticed that there was shortage in stock and as such, charge sheet was issued against the 21 complainant and departmental enquiry was initiated against him. Complainant has admitted in his evidence that there was no order to the effect that he has to take the assistance of accused persons. This also shows that no work of the complainant was pending with the accused persons so as to show official favour to him by the accused persons. It has also come on record that he is the superior officer of the accused persons.
26. Perusing the oral and documentary evidence in the case, demand and acceptance of the bribe amount by the accused persons is not at all established by the prosecution with cogent and satisfactory material. Eventhough P.W.6, the investigating Officer has deposed about the conducting trap as per Ex.P3 mahazar and recovery of the tainted currency notes, but perusing the other materials on record about which I have already made a reference above, it will not inspire the confidence of Court that recovery has also been satisfactorily established by the prosecution. As it has 22 come in evidence that there was a shortage in the store to the extent of Rs.1,55,000/- and charge sheet was issued against the complainant and departmental enquiry was also initiated, the possibility of complainant filing the complaint against the accused persons with an enmity cannot be completely ruled out. The trial Court has properly appreciated the materials on record and has rightly come to the conclusion that prosecution has failed to prove its case beyond all reasonable doubt and accordingly, has acquitted the respondents-accused persons. No illegality has been committed by the trial Court in coming to such conclusion. The prosecution has not placed any valid and justifiable grounds to show that the judgment and order of the trial Court is illegal. No merits in the appeal.
Hence, appeal is dismissed.
Sd/-
JUDGE Bkp/Bsr