Karnataka High Court
M S Chandrashekar S/O Late ... vs State By Police Inspector on 5 March, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.292 OF 2006
BETWEEN:
M.S. Chandrashekar,
Aged about 59 years,
Son of Late Shivarudraiah,
Superintendent office of B.E.O.
Malleswaram, 6th Cross,
Bangalore - 560 003. ...APPELLANT
(By Shri. B.K. Manjunath, Advocate)
AND:
State by Police Inspector,
Police Wing,
Bangalore Division,
Karnataka Lokayukta,
Bangalore - 560 001. ...RESPONDENT
(By Smt. T.M. Gayathri, Special Public Prosecutor)
*****
This Criminal Appeal is filed under Section 374(2)
Code of Criminal Procedure, 1973, by the Advocate for
the appellant/accused against the judgment dated
17.1.2006 passed by the Special Judge, Bangalore (U)
District, Bangalore, in Spl. C.C.No.62/2004 - convicting
the appellant-accused for the offence punishable under
Sections 7, 13(1)(d) read with Section 13(2) of P.C.Act,
1988 and sentencing him to undergo S.I. for 1 year and
2
to pay fine of Rs.10,000/- I.D. to undergo S.I. for 3
months for the offence punishable under Section 7 of
the P.C.Act and further sentencing him to undergo S.I.
for 2 years and to pay fine of Rs.30,000/- I.D. to
undergo S.I. for 6 months for the offence punishable
under Section 13(1)(d) read with 13(2) of P.C.Act. The
substantive sentences of imprisonment shall run
concurrently.
This appeal is coming on for Hearing this day, the
Court made the following:
JUDGMENT
Heard the learned Counsel for the appellant and the respondent.
2. The appellant herein accused no.1 was accused of offences punishable under Sections 7, 12 and 13(1)(d) read with Section 13(2) of the Prevention of corruption Act, 1988 (hereinafter referred to as the 'Act' for brevity). The facts of the case are as follows:
The present appellant was working as a Superintendent in the office of the Block Education Officer, Malleshwaram, Bangalore. A complaint against him was lodged by one Vasanthi Chandrashekar, a retired teacher of HMT Educational Institution. It was her complaint that from 1966 till 1998, she was working as a teacher in the said institution and at the time of 3 retirement, a sum of Rs.66,400/- was due to her towards the arrears of salary and it was her case that at every stage, the officials attached to the office of the Block Education officer were harassing her for bribe and were deliberately withholding the amount due to her by not processing the bill in respect of the same on one pretext or the other. It was her specific allegation against the present appellant that he had demanded a sum of Rs.25,000/- as bribe and after much negotiations, it was reduced by Rs.2,000/-. It was her further case that the demanded amount of Rs.18,000/- be paid in the first instance and after the bill was cleared and the cheque was to be handed over to the complainant, she was to pay the remaining amount of Rs.5000/-. It is in this background that she had immediately approached the Deputy Superintendent of Police, Karnataka Lokayuktha on 30.03.2002 and lodged a written complaint, who in turn, entrusted the matter to Police Inspector, Lokayuktha office, Bangalore who registered a case in Crime No.10/2002 and commenced investigation. During investigation, an 4 entrustment panchnama was prepared and a successful trap was laid. It is claimed that during the trap, the tainted bribe money was recovered from the possession of one C.S.Shanthkumar, Retired Master of Arunodaya Kannada Higher Primary School, J.C.Nagar, Bangalore who was present along with accused no.1 and therefore, arrayed as accused no.2 in the presence of two panchas and a necessary panchanama was drawn and thereafter, the charge sheet has been laid against the present appellant. The charges having been framed by the Special Court against the accused and the accused having pleaded not guilty, the prosecution had examined nine witnesses and marked 25 documents, apart from material objects 1 to 14. Thereafter, the statement of the accused - appellant under Section 313 of the Cr.P.C. was recorded. The defence was one of total denial. On consideration of the material evidence and after hearing the parties, the Court below had framed the following points for its consideration:
"i).Whether the prosecution proves that the sanction order issued by PW4 for 5 prosecution of accused No.1 is valid and in accordance with law?
ii) Whether the prosecution proves beyond reasonable doubt that on 4.4.2002 at about 2.25 pm, the Accused No.1, demanded and accepted an illegal gratification of Rs.18,000/- from PW2 Smt. Vasanthi Chandrashekar as a motive or reward, for the purpose of showing an official favour viz., for getting her arrears of salary and in the said process by corrupt or illegal means or by otherwise abusing the position as a public servant obtained pecuniary advantage of Rs.18,000/- without public interest rendering him liable for conviction u/s. 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988?
iii) Whether the prosecution proves beyond reasonable doubt that Accused No.2, received the bribe amount of Rs.18,000/-
from accused No.1 knowing that it was the bribe amount and kept it with him and thereby abetted accused No.1 in receiving the bribe amount rendering him liable for conviction u/s.12 of Prevention of Corruption Act, 1988?
iv) What order? "
The court has answered points 1 and 2 in the affirmative and point no.3 in the negative and proceeded to acquit the accused no.2 while convicting the present appellant and sentencing him to undergo simple imprisonment for a period of one year and to pay a fine 6 of Rs.10,000/- for the offences punishable under Section 7 of the Act, to undergo simple imprisonment for two years and to pay a fine of Rs.30,000/- for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Act and the sentences were to run concurrently. It is that which is under challenge in the present appeal.
3. The Learned Counsel for the appellant, while canvassing the grounds urged challenging the judgment of the Trial Court, would firstly point out that the very complaint does not implicate the appellant at all. The complaint is generally made against all the officials attached to the office of the Block Education Officer and is not specific against any particular individual including the appellant. It is pointed out that the specific sentence in the kannada language in the complaint which loosely translated in english would read as follows:
"That some officers of Block Education Office with ill intentions deliberately did not pass the bill" (in respect of the salary due to her arrears) 7 and it is pointed out that it is not the case of the prosecution that the bill had not been recommended by the office of the Block Education Officer. Para 12 therein as well as Para 6 of the said document would clearly indicate that the appellant had recommended passing of the bill as on 13.7.2011 and 18.7.2011, which was much earlier to the complaint which was filed on 30.03.2002. Therefore, the learned Counsel would submit that the very basis of the complaint was not met, in the sense, there was no work which the appellant could do as a favour for the complainant in order to demand bribe. As the bill, which, according to the complainant, was to be approved and passed by the office of the Block Education Officer had already been done as pointed out. It is further highlighted that the role of the officers of the Block Education Officer is only ministerial and that there is no cheque which is kept in the office of the Block Education Officer nor can it be prepared in the office of the Block Education Officer. The cheque is not signed by anybody in the office. The Bill is prepared by the Head Master, 8 attested by the bank and it is received by the Treasury and cheque is also issued by the Treasury. The Block Education Officer only counter signs the bill in this regard. The appellant would have no part to play in the entire process. The learned Counsel elaborating on the procedure for teachers receiving the salary of the aided institution is evident as disclosed in the testimony of P.W.6 - Manager of the Block Education Officer's Office, P.W.4 - IAS offficer, P.W.9 - Investigating Officer and all of whom have unequivocally and in no uncertain terms have indicated the procedure as to how the teacher obtains a cheque. The learned Counsel has elaborated on the procedure at paragraph 11 of his appeal memo to demonstrate that the appellant would have hardly any role to play in the entire process and would emphasize that this procedure is admitted and accepted by the prosecution witnesses namely, P.Ws.2, 4, 6, 9 and D.W.1 and would reiterate that the appellant has not counter signed. The appellant is not the person to make the bill or raise the bill and is in no way concerned with receiving the token from the 9 treasury and the further steps in receiving the ultimate cheque which is handed over to the teacher. The learned Counsel for the appellant would further point out that the evidence of P.W.6 is categorically distinguished as regards the procedure in receiving the bill, obtaining the bill and this would clearly support the case of the appellant that he would have no role to play at all in the entire process. The learned Counsel would next point out that the other serious infirmity which the Court below has overlooked is the fact that the Investigating Officer in his cross-examination has admitted that at the time the trap was laid he was sitting in a jeep at 6th cross, away from the office of the Block Education Officer and he could not have seen the pre-arranged signal given by the complainant, of removing her glasses and putting them back on, especially, when the compound wall of the Block Education Officer's Office is more than six feet in height and the trap having taken place inside the compound, it was next to impossible for the Investigating Officer to have witnessed any such trap being successfully laid. It 10 is then pointed out that insofar as evidence of P.Ws.2 and 3 are concerned, P.W.2 being the complainant and P.W.3 being a shadow witness, there is much variance in their respective testimony. It was the claim of the complainant that when the trap was to be effected and when she along with the shadow witness went to the office of the Block Education Officer, it was found that the appellant was not present and therefore she came back to the jeep which was parked at a distance from the office in which the Investigating Officer was sitting to inform that the accused was not present and thereafter, she having made several phone calls from time to time to the office to find out if the accused had returned and thereafter, when she received a positive answer that he was back at the office, but he was still to enter the office and the complainant and P.W.3 proceeded to the office building, met the accused, who was standing outside talking to the Head Master - accused no.2 outside the office but inside the compound and that there was a demand by him for the bribe amount, which she handed over to the appellant and 11 which was received by him and handed over to accused no.2 calling upon him to count it and keep it with him and that he would collect it later. It is this sequence after which the complainant is said to have signaled to the Investigating Officer who descended on the appellant along with his men and took him into custody and thereafter, the further process had been carried out, of washing his hands with sodium carbonate solution to establish that he had handled the marked brought for the production of the same before the Court at the trial. A mahazar was also drawn up as to the seizure etc. In this regard, the testimony of P.W.3 is in total variance. There is no indication of P.W.2 having met the accused and thereafter, PW.3 who had accompanied her all the time and that they waited for the appellant to return to his office, thereafter, the proceedings therein and the manner in which the trap had been successfully executed. It is further urged that in the face of the circumstances that the bill in question had been sent by the office of the Block Education Officer in August 2001 after it was counter 12 signed by the Block Education Officer, the further involvement of the appellant in being enabled to get possession of the cheque, having regard to the procedure which is elaborately stated by several witnesses was a burden cast on the prosecution, entirely. But however the Trial Court having held that the accused would have to establish the manner in which he came into possession of cheque is a reason afforded by the Trial Court which runs counter to the established canons of the Criminal Justice system. A burden cannot be placed on the accused to prove something against himself. The further glaring circumstance is that there was no material produced to implicate the appellant in his involvement in having obtained a cheque even if that was possible to establish this circumstance which would have been necessary for the prosecution to place the basic material such as the bill, issued from the treasury and the original cheque which would have been handed over after obtaining an acknowledgement from the recipient. If the appellant was in a position to carry out this process of ensuring 13 the passage of the bill through the treasury, the issuance of a token and the cheque being received by him, necessary documents evidencing the several steps, whereby signatures of the appellant would have appeared at each stage, ought to have been placed before the Court and therefore, this is a serious lapse in establishing the links in the chain as to the participation of the appellant in the process of securing the cheque notwithstanding that in the normal course, the officials of the Block Education Officer, including the appellant, would have nothing further to do with the bill after it is counter signed by the Block Education Officer, sent for further processing through the treasury and the bank concerned. Hence, in the absence of any such material documents being produced, merely on the say of the complainant that the appellant was in the possession of a cheque and it was handed over after receiving the bribe amount of Rs.18,000/- is an allegation which necessarily would have to be proved beyond all reasonable doubt. On the other hand, the so called bribe amount is not 14 recovered from the appellant - accused no.1. It was admittedly recovered from accused no.2 and the learned Counsel would further point out that there is no explanation forthcoming as to how accused no.2 who is said to be the Head Master of Arunodaya Kannada Higher Primary School was present at the scene and his role in the entire episode. There is no connection whatsoever in the said accused to have been present and there was no communication especially between the appellant and accused no.2 in the appellant purportedly having directed accused no.2 to count the money and keep it with himself. The prosecution was required to establish this nexus between the accused especially as there was no allegation of abetment in the commission of the offence. On the other hand, it was the defence set up by the accused no.2 that he was not even present at the scene and his alibi that at the relevant point of time was engaged in invigilation work and he also having tendered evidence apart from producing defence witnesses to establish that circumstance has been negated by the Trial Court, as 15 being irrelevant. Further the Trial Court having acquitted the accused no.2 for the reason that there was no allegation against him of having demanded bribe and that there was no case made out of having abetted the accused no.1 in the commission of the offence would leave little scope for the prosecution to assert that there was demand and acceptance of the bribe amount. The Trial Court has inexplicably acquitted the accused no.2 absolving him of all the allegations and the abetment in which event the entire case of the prosecution would have to collapse as recovery of the amount which is crucial to establish that there was demand and acceptance of the bribe amount is no longer possible insofar as the present appellant is concerned. These aspects highlighted is glossed over by the Trial Court. It is further contended with reference to the submissions made by the complainant herself as well as other evidence that is available on record that insofar as the sequence of events are concerned, the bill in question had already been counter signed by the Block Education Officer as already pointed out and this 16 had been carried by the complainant personally to the bank and got the bill attested by the bank. She had then presented it to the treasury, a token had been obtained by her from the treasury which was signed and sealed by the Manager of the Bank and she herself had taken and handed over to the treasury and had obtained a cheque from the treasury. P.W.6 in his cross-examination admits thus:
"It is true that P.W.2 herself had taken the bill after giving acknowledgment to us as per Ex.D.1(a). It is true that thereafter P.W.2 had taken the bill to the bank and after getting it stamped, she had presented it before the treasury. It is true that treasury had issued a token to her".
Hence, it is pointed out that the conviction which is based solely on the testimony of P.W.2 is not sustainable. The case of the complainant is not supported by any witness. One curious circumstance was that P.W.3 who is said to have been cross-examined by the Counsel for the appellant as a stock witness had written down the, statements to be made in his evidence, on the palm of his hand. This had been 17 noticed and attention was drawn to the same. The Trial Court, however, has opined that the said witness was not asked whether he had looked into the notes on his palm in giving his evidence and therefore, has not attached much importance to the fact that he had come tutored to tender his evidence. Therefore, it is the contention of the appellant that if the testimony of P.W.3 is taken away, on the footing, that he was a stock witness and had premeditated his testimony, at the tutoring of the prosecution and if that evidence is eschewed, there is absolutely no case made out in the sole testimony of P.W.2 and hence, would take this Court through the record to substantiate all of several grounds that are raised in the appeal and to question the correctness of the reasoning of the Court below in holding that the prosecution has to establish its case beyond all reasonable doubt in the face of gross infirmities that are pointed out and the lack of evidence as well as the several links in the chain which are missing which would clearly demonstrate that the 18 prosecution had not made out a case whatsoever in support of the charges that are brought.
4. While the learned Special Public Prosecutor for the respondent - Karnataka Lokayuktha Police would seek to justify the judgment of the Court below and would submit that the very contentions that are raised in the present appeal were raised by way of arguments before the Trial Court and the Court below has considered all these aspects in arriving at its conclusions and therefore, it cannot be said that the judgment is bad in law as sought to be urged by the learned Counsel for the appellant.
5. On the basis of these rival contentions and on examination of the record, the Court below has held that the testimony of P.W.2 has not been dented in the cross-examination and that she had confirmed each and every statement made by her during examination-in-chief while also noticing that there were certain omissions as for instance, she has not stated that the accused had demanded Rs.25,000/- as bribe 19 and she has not stated that she had visited the office of the BEO, dozen times. It is also found by the Court below that in her cross-examination she had not admitted before the Investigating Officer that she informed him about the non-availability of the accused no.1 when for the first time she went there in the course of the trap proceedings and about making repeated phone calls to the office of the accused no.1 to ascertain whether he was available in the seat. It was specifically suggested to her that she had informed the office and there was no occasion for the appellant to carry the cheque with him and that she had not received any cheque from the appellant. Significantly during her cross-examination a copy of the bill was confronted and it was elicited from her that the signature done on Ex.D.1 was hers. Similarly another copy of the bill - Ex.D2 for a sum of Rs.66,400/- was shown to her and she has admitted that she had also signed therein. Therefore, she was recalled for cross- examination. The Court below has taken note of the fact that she was recalled for further cross-examination and 20 it was suggested to her that she had received the bill prior to the lodging of the complaint but that she had denied the said suggestion. She had pleaded ignorance of Ex.D.1 - a copy of the bill, but in her cross- examination she had admitted the suggestion that the bill might have been passed in the year 2001 and further denied that she had herself presented the bill to the treasury, collected token and exchanged it for token after two or three days thereafter. This coupled with the evidence of. P.W.6 who was the Manager in the office of the Block Education Officer has categorically stated that it was the complainant who had received the bill and carried it to the treasury and received a token thereof and the cheque from the bank. This testimony which is clearly contrary to the complainant's claim would clearly absolve the appellant of being in a position to withhold the payment or the cheque which was due to the appellant even though in the usual course, it was not at all possible for him to do so and the bills having been passed much prior to the complaint, the only possible reason that the appellant 21 could seek bribe from the complainant would have been if he had been in a position to withdraw such cheque issued to the complainant and when that is not possible, the question of demand and acceptance of the bribe was also not possible. This aspect of the matter seems to have been lost sight of by the Trial Court and more significantly, the presence of accused no.2 is indeed mysterious. It was not established by the prosecution as to the nexus if any, between the appellant and the said accused no.2 and the further claim that the appellant had handed over the bribe amount after receiving it from the complainant to the said accused who in turn had counted the money and had been asked by the appellant to keep the money in his pocket and which he did, is indeed a circumstance which goes unexplained by the prosecution. Ultimately the said accused having been acquitted by the Trial Court, compounds the confusion that exists in the sequence of events and the possible connection between the appellant and accused no.2. This is a crucial link which is missing in the allegations of the 22 prosecution and which the Court has glossed over in ultimately acquitting the said accused no.2. Therefore, the several infirmities which are highlighted by the learned Counsel for the appellant are not all met in the judgment of the Trial Court. The contention by the respondent that the same has been answered effectively by the Trial Court is sadly not correct as the Court below has left many circumstances open ended without addressing the same in arriving at its conclusion. Therefore, on more grounds than one the appellant has certainly made out a case for acquittal. The prosecution has failed to establish its case beyond all reasonable doubt. Consequently, the appeal is allowed. The judgment of the Court below is set aside. The appellant is acquitted. The fine amount if any, paid by the appellant shall be refunded. The bail bonds executed by the appellant and his surety shall stand cancelled.
Sd/-
JUDGE sh