Karnataka High Court
K.Mohammed Ismail S/O K.Abdulla vs The Karnataka Lokayukta By on 3 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 2805/2013 (C)
BETWEEN
K. MOHAMMED ISMAIL,
S/O.K. ABDULLA,
AGE: ABOUT 57 YEARS,
OCC: FIRST DIVISION ASSISTANT,
TAHSILDAR'S OFFICE, BELLARY,
R/O. DHOBI STREET,
OPP: C.B. POLICE STATION,
BELLARY.
... PETITIONER
(BY SRI.PRAKSAH HOSAMANI, ADVOCATE)
AND
THE KARNATAKA LOKAYUKTA,
BY LOKAYUKTA INSPECTOR OF POLICE,
BELLARY
...RESPONDENT
(BY SRI. ANIL KALE, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C,
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 05.10.2013 PASSED BY THE
PRINCIPAL SESSIONS JUDGE AND SPECIAL JUDGE, BELLARY IN
SC NO.45/20911 AND ACQUIT THE APPELLANT FOR THE
ALLEGED OFFENCE.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.01.2023, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by appellant/accused challenging the judgment of conviction and order of sentence dated 05.10.2013 passed by the Principal Sessions Judge and Special Judge, Bellary in Special Case No.45/2011, whereby the learned Special Judge has convicted the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ( 'PC Act' for short) and sentenced him to undergo RI for One year and to pay fine of Rs.10,000/- for the offence under Section 7 of PC Act and also sentenced to undergo RI for Three years and to pay fine of Rs.10,000/- for the offence punishable under Section 13(1)(d) read with 13(2) of P.C. Act, with default causes, and ordered that the sentences shall run concurrently.
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2. The brief factual matrix leading to the case are as under:
The accused was working as First Division Assistant in the office of Tahsidar, Ballari and he is a public servant. The complainant-Mohammed Arif is the permanent resident of Ballari and his elder brother is CW.12-Siraj Ahmed. The said Siraj Ahmed (CW.12) has submitted an application for obtaining survivorship certificate pertaining to his deceased father since his family members are intended to nominate their handicapped sister for getting death benefits of their deceased father. In this regard, the complainant went to Tahsildar's Office at Ballari and approached the appellant/accused for issuance of Survivorship Certificate. It is alleged that accused demanded bribe of Rs.1,000/- and received advance of Rs.400/- as part of the said bribe amount and asked the complainant to pay balance of Rs.600/- later. It is the further case of prosecution that the complainant was not 4 willing to pay bribe and hence, he lodged a complaint. Then, on the basis of complaint, the Investigating Officer has secured two panchas and he produced Rs.600/- before the Investigating Officer and an entrustment mahazar was drawn and thereafter trap was laid down. It is further alleged that, on 01.02.2011, on the way leading to pension section behind the District Treasury office situated within the premises of Deputy Commissioner's Office, the accused accepted illegal gratification of Rs.600/- from the complainant and on bargain by the complainant, he returned Rs.100/- and kept Rs.500/- in his pant pocket. At that time, the raid was conducted on the basis of pre- instructed signal and the accused was apprehended. His hand-wash was taken, which has turned into pink colour ie., positive for phenolphthalein test and tainted amount was also recovered. The statement of accused was also recorded, and thereafter a detailed trap-mahazar was drawn. Then the Investigating Officer apprehended the accused and later on, he recorded statement of witnesses. 5 Then obtained sanction and FSL report, and he found that there are sufficient materials to proceed against the accused, and hence he submitted the charge sheet against the accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of P.C. Act.
3. The accused was produced before the concerned Special Court and was enlarged on bail. After submission of the charge sheet, as there were sufficient grounds to proceed against accused, cognizance of alleged offences are taken. Prosecution papers were also furnished to the accused. Then the charge was framed against the accused and same was read-over and explained to him and he pleaded not guilty.
4. To prove the guilt of accused, prosecution has examined Fourteen witnesses in all as PWs.1 to 14 and placed reliance on Fifty One documents marked as Exs.P1 to P51, and Sixteen material objects as per MOs. 1 to 16. 6
5. During cross-examination, the portion of statement of PW.14 (Ex.P23) was also got marked as Ex.D1. After conclusion of evidence of prosecution, statement of accused under Section 313 Cr.P.C. was recorded to enable the accused to explain incriminating evidence appearing against him in the case of prosecution and his case is of total denial and did not choose to lead any defence evidence. However, he has given explanation stating that, no work was pending with him as on the date of complaint and his statement was obtained by force and coercion by the Lokayukta officials.
6. After hearing arguments and after appreciating the oral as well as documentary evidence, the learned Special Judge found that the prosecution is able to discharge its burden of proving the guilt of accused and accordingly convicted him by imposing sentence of imprisonment as well as fine, as noted above. Being aggrieved by the judgment of conviction and order of 7 sentence First Appellate Court, the appellant/accused is before this Court.
7. Heard the arguments advanced by the learned counsel for appellant/accused and Special Public Prosecutor for respondent-Lokayukta. Perused the records.
8. Learned counsel for appellant would contend that the allegations made in the complaint disclose that, on 19.01.2011, one Mr.Siraj Ahmed, the elder brother of the complainant has approached the Tahsildar's Office, and requested for survivorship certificate and again CW- 12 approached the Nemmadi Kendra on 25.01.2011 for obtaining survivorship certificate and for that, the accused demanded bribe. But, by that time, the accused has already recommended for issuance of survivorship certificate and as such there was no work pending with accused. He would also contend that, accused is not the competent authority to issue such certificate and the same was required to be obtained from the Front Office. He 8 would also contend that the records disclose that the work concluded by 29.01.2011 and the Tahsildar has approved the note. He further contend that, PW.2-Vinod Kumar has turned hostile and he went on changing his statement and as such, his evidence cannot be accepted. The learned counsel would further contend that there is no material evidence regarding demand and acceptance and he also asserts that no sample voice was taken and CD produced is not having any certification under Section 65(B) of the Indian Evidence Act and hence, it cannot be looked into and hence, he would contend that there is no material evidence to prove the alleged demand and acceptance and the trial Court has failed to appreciate this aspect and only on the statement said to have been given at the time of the trap, which was obtained by fraud, the learned Special Judge has proceeded to convict the accused, which led to miscarriage of justice. Hence, he would seek for interference by this Court by setting aside the impugned 9 judgment of conviction and prayed for allowing the appeal by acquitting the accused.
9. Per contra, the learned Special Public Prosecutor would contend that the evidence of complainant-PW.1 is corroborated by the evidence of Investigating Officer-PW.14 and taking of sample voice is not seriously disputed and challenged by the appellant/accused. He would also contend that the evidence of PW.12 discloses that the work was pending and PW.3 has fully supported the case of prosecution, while PW.2 though deviated in his evidence, but his evidence would establish the recovery of amount from accused. Hence, he would contend that the learned Special Judge has appreciated all these aspects in a proper perspective and arrived at a just decision. Hence, he would contend that judgment of conviction and order of sentence does not suffer from any illegality or infirmity so 10 as to call for interference by this Court and sought for dismissal of the appeal.
10. Having heard the arguments advanced by the learned counsels appearing on both sides and on perusing the records, the following point would arise for consideration:-
"Whether the judgment of conviction and order of sentence passed by the Special Judge is erroneous, arbitrary and suffers from any infirmity or illegality so as to call for any interference by this Court."
11. The allegations of the complainant discloses that, his brother has filed an application for Survivorship Certificate to enable them to produce it before the competent authority so that their handicapped sister would get retirement benefit of their deceased father. According to the prosecution, an application in this regard was filed on 19.01.2011 and accused being working in concerned 11 section has demanded and accepted illegal gratification, for issuing survivorship certificate.
12. PW.1-Mohammed Arif is the complainant. In his evidence, he has specifically deposed regarding lodging complaint, the Investigating Officer/PSI securing panchas and he producing six currency notes of Rs.100/- denomination, recording their serial numbers, the same being smeared with phenolphthalein powder, demonstration regarding dipping of the hands in sodium carbonate liquid and the consequences of change in colour etc and drawing entrustment mahazar. He further deposed that, then himself (PW.1) and PW.2 together went to the office of the accused and on the way, accused met them and asked them to wait and later on he returned and near Pension Section, he demanded and accepted the amount of Rs.600/- and when complainant asserted that it is excess, he refunded Rs.100/- and kept Rs.500/- in his pant pocket after counting. His evidence further discloses 12 that, as per his signal as pre-assigned to him, the Lokayukta officials raided spot, taken hand-wash of accused which turned into pink, the tainted amount was recovered from the pant pocket of the accused and the pant pocket of the accused was also subjected to phenolphthalein Powder test. PW.1 has also identified the pant of the accused. Though this witness was cross- examined at length, but nothing was elicited so as to impeach his evidence. The suggestion was made to PW.1 that, 'He attempted to hand-over the amount forcibly in the hands of the accused, but, the accused refused the same".
13. PW.2-Vinod Kumar is a shadow panch and initially he has partly supported the case of the prosecution and to some extent, he turned hostile. In this regard, he was treated as hostile witness by the Special Public Prosecutor and in the cross-examination by the Special Public Prosecutor, PW.2 has admitted the entire 13 case of prosecution. However, during cross-examination by the defence counsel, he again admitted the entire defence put-forth by the accused by saying 'Yes' to each and every question. It is elicited that, he did not hear the conversations between the complainant and accused, and the complainant was frightened and attempted to hand over amount forcibly, but the accused did not receive the amount and the police holding palm of the accused. He has also admitted that Rs.600/- was in possession of complainant and the same was got counted through accused as suggested. But, on perusal of the cross- examination, there is no explanation as to how the Pant Pocket wash of the accused was tested positive to phenolphthalein test. If the entire defence put-forth by accused is accepted, in view of admission given by PW.2 it is evident that, he did not receive the amount and the amount was with the complainant and the police had caught hold of the palm of the accused. If this version is accepted, there is possibility that his palm being coming in 14 contact with phenolphthalein powder. But, there is no explanation by accused as to how his pant wash has shown positive to the phenolphthalein test, when it is not his case that his pant wash was not at all taken, and he has not made any attempts to explain this aspect. The evidence of PW.2 clearly discloses that, he is won-over by accused as he went on changing his versions as per his convenience. Even if this evidence is ignored, the evidence of PW.1 remained unchallenged and regarding pant pocket wash testing positive is not explained by the accused.
14. PW.4-Pramod was working as Shirastedar in Tahsildar's office and his evidence discloses that, on 01.02.2011 when he was on duty in office, a raid was conducted and accused is being trapped. Interestingly, he has identified the voice of accused and in cross- examination, there is no denial of the fact that, the CD does not contain voice of accused. But, on contrary it is 15 suggested that the conversion recorded in CD was in Urdu language and a simple suggestion was made that, 'the voice in CD was not of accused', which he denied. No evidence is forthcoming as to why this witness should give false evidence against the accused, when no animosity is forthcoming between this witness and accused.
15. PW.5-Smt.Gagamma is the Computer Operator at Nemmadi Kendra, Block Office, Ballari.
16. PW.9-Duryodhana is the Chemical Examination Expert of Regional Lab. He deposed regarding hand wash and pant pocket wash of the accused showing positive to phenolphthalein test. His evidence was not challenged seriously and a formal suggestion was made to him that, 'there was no phenolphthalein contents in the liquid used for hand wash as well as pant wash of accused'. But, the said suggestion was denied by this witness and no other suggestions were made to him.
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17. PW.11-Ravi was a Police Constable. Though he was a Police Constable, he was assigned with the duty of taking photographs and as per instructions, he taken photographs during the trap mahazar and he supported the case of prosecution, but in cross-examination, his evidence is not impeached
18. PW.13-Amalan Aditya Biswas is Tahsildar and he is the sanctioning authority, while PW.14-Satish S.Chitagubbi is the Investigating Officer. His evidence corroborated with the evidence of the PW.1-complainant and PW.11-Ravi, the photographer as well as police constable, he is a part of the raiding party. PW.14 was cross-examined by the defence counsel at length and his evidence is not impeached. The accused has set-up a defence during 313 statement that, his explanation during trap as per Ex.P23 was obtained by force. A similar suggestion was also made to Investigating Officer. But, the Investigating Officer has denied the said suggestion. 17 But, however during cross-examination of PW.1- complainant, no suggestion was made to him that, 'the explanation of accused as per Ex.P23 was obtained by coercion or force'. The records also disclose that the tainted amount was recovered from the custody of accused. There is a presumption under Section 20 of P.C. Act in favour of prosecution.
19. The learned counsel for accused/appellant has placed reliance on an unreported decision of this Court rendered in Criminal Appeal No.200105/2015 dated 16.02.2022 in the case of Chandrasha Vs. State of Karnataka. But, the facts and circumstances are entirely different. In the said case the accused has given factual information at the time of trap itself and it is held that, it is mandatory for prosecution to establish demand and acceptance by accused. In this regard he relied upon a decision reported in (2009) 6 SCC 587 (A. Subair Vs. State of Kerala). Further, the learned counsel has also 18 placed reliance on a decision reported in 2022 LiveLaw (SC) 192 (K. Shanthamma Vs. The State of Telangana) and argued that demand and acceptance is sine-qua-non for establishing the offence under Section 7 of PC Act and in the instant case, the same is not established. On this point also, he further placed reliance on a decision reported in KCCR 2012(1) 414 (R. Malini Vs. State of Karnataka). He has also placed reliance on an unreported decision of Delhi High Court in Criminal Appeal No.159/2005 dated 19.08.2015 in the case of S.K. Saini and Another Vs. CBI.
20. In the instant case, the evidence does establish that the amount was recovered from the custody of accused. The Hon'ble Apex Court in a decision reported in AIR 1962 SC 195 (Dhaneshwar Narain Saxena Vs. The Delhi Administration) has specifically held that, misconduct by public need not be in connection with his own official duty. Further, the said principle is again 19 reiterated by the Full Bench of Hon'ble Apex Court in AIR 1966 SC 1762 ( V.D.Jhingan Vs. State of UP), wherein Hon'ble Apex Court has laid down guidelines regarding drawing mandatory presumptions. In this regard, the decision of Larger Bench of Hon'ble Apex Court reported in AIR 1964 SC 575 (Dhanvantrai Balwantrai Desai Vs. State Maharashtra) is relevant, wherein Apex Court has specifically observed that, when accused is shown to have accepted money which was not legal remuneration, the presumption can be raised and the rebuttal must be by explanation, which must be true and not merely plausible. Further, in the decision reported in AIR 1960 SC 548 (C.I. Emden VS. State of U.P), the Constitutional Bench of Hon'ble Apex Court has held that, for drawing presumption under Section 4(1) of old Act and Section 20 of the present Act, money paid need not be by way of bribe and the accused is required to rebut the said presumption on the basis of preponderance of probabilities and not by plausible explanation.
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21. Further, in decision of Dharneshwar Narain Saxena's case (AIR 1962 SC 195) (cited supra), the Constitutional Bench has pleased to observe that, misconduct by public servant need not be in connection with his own official duty. Further in AIR 1966 SC 1762 in case of V.D. Jhingan Vs. State of U.P., the Full Bench of the Hon'ble Apex Court has specifically observed that, when it is shown that accused has received certain money which is not legal remuneration, the presumption can be raised. It is further observed that, the burden of poof lying upon the accused for rebutting the presumption is on the basis of preponderance of probabilities, as is done by a party in civil proceedings. In the instant case, the accused except placing reliance on the evidence of PW.2, has not placed any other material evidence. Hence, at no stretch of imagination, it can be presumed that the presumption has been rebutted.
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22. This issue has again come up for consideration before Constitutional Bench of Hon'ble Apex Court in Criminal Appeal No.1669/2009, wherein the Apex Court on relying upon on the decision in the case of Dhaneshwar Narain Saxena (cited supra) has held that, drawing presumption is mandatory. It is also held that, once it is shown that the amount is received by accused, automatically presumption is required to be drawn. It is further held in the said decision that, though the complainant or the shadow witnesses turn hostile, demand and acceptance can be proved by other circumstantial evidence. In the instant case, PW.1 has supported the case of prosecution and his evidence is corroborated by evidence of PWs.11 and 14. Further, though accused has denied possessing the amount, recovery of amount from his custody is established by prosecution. He is only relying on evidence of hostile witness (PW.2) alone. But, the evidence of PW.2 discloses that, he went on changing his versions as per his convenience and it is evident that 22 he is won-over by accused and hence, his evidence cannot be given much importance when the evidence of PWs.1, 11 and 14 is not impeached. Even there is no explanation from accused as to how his pant-pocket wash has tested positive to phenolphthalein test.
23. Looking to the above facts and circumstances and in view of Constitution Bench's decision cited above, the decisions cited by learned counsel for appellant/accused cannot be made applicable to the facts and circumstances of the case in hand.
24. Learned counsel for the appellant has further contended that the voice recording is not sent for examination and as per provision of Section 65(B) of Indian Evidence Act, certificate must accompany electronic record like CD, VCD, Pen-drive etc. and as such the in the instant case, the certificate is not produced. However, there is no serious challenge to the fact that voice was recorded and the content of recording was in 23 Urdu Language, as same is suggested during cross- examination of PW.2 by the defence counsel and he admitted the conversation. In this regard, he placed reliance on a decision reported in (2014)10 SCC 473 (Anvar P.V. Vs. P.K. Basheer and Others). Even if the aspect of voice recording is ignored, other substantial evidence establishes the guilt of accused. Hence, the principles enunciated in the above cited decisions will not come to the aid of appellant in any way.
25. Learned counsel for the appellant has further placed reliance on a decision of the Hon'ble Apex Court reported in 2000 (8) SCC 364 (State through Inspector of Police, A.P. Vs. K. Narasimhachary) and contended that, whenever two views are possible, then the one which is in favour of accused is required to be considered. But, in the instant case there are no two views as argued and the accused is required to rebut the presumption in favour of prosecution. But, in the instant 24 case, it is found the tainted amount was recovered from the custody of accused and test of Sodium Carbonate liquid wash of both hands as well as pant-pocket of accused is shown positive, and in that regard there is no explanation from accused. Hence, the principles enunciated in the above cited decisions will not assist the appellant/accused in any way. The evidence on record clearly establish that there is 'demand' and 'acceptance' of money by accused and the amount was recovered from the custody of accused. The accused has not explained as to how he came in possession of tainted notes and there is only a formal denial from accused that it was thrusted into his hand. But, as already stated the amount was recovered from pant-pocket of accused and the hands and pant-pocket are also tested positive and it is also not the case of accused that the amount was thrusted or pushed into his pant-pockets.
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26. Considering the facts and circumstances of the case, it is evident that the trial Court has appreciated the oral and documentary evidence in detail and arrived at a just decision and the trial court has rightly convicted the accused for the alleged offences and imposed reasonable sentence of imprisonment with fine. The corruption mania is spreading like cancer and it cannot be taken in light way.
27. Looking to the above facts and circumstances, the judgment of conviction and order of sentence passed by the learned Special Judge cannot be said to be erroneous and illegal so as to call for any interference by this Court. Hence, the appeal being devoid of any merits does not survive for consideration and therefore, the point under consideration is answered in negative and accordingly, I proceed to pass the following:-
ORDER The appeal stands dismissed.26
Registry is directed to send a copy of this Judgment along with TCRs to the concerned trial Court with a direction to secure the presence of accused for serving the sentence.
Sd/-
JUDGE KGR*