Karnataka High Court
Sri. S. Vasanth Kumar vs State Of Karnataka on 21 August, 2014
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.86/2013
BETWEEN:
Sri. S. Vasanth Kumar,
Aged about 50 years,
S/o. T.M. Siddalingappa,
Branch Manager,
K.S.F.C.,
Davanagere.
Resident of the premises,
Bearing No.459, 6th Cross,
2nd Block, 4th Main,
R.T. Nagar,
Bangalore-560 032. .. APPELLANT
(By Sri. C.V. Nagesh, Adv.)
AND:
State of Karnataka,
By the Police Inspector,
City Division,
Karnataka Lokayuktha,
Bangalore. .. RESPONDENT
(By Sri.* Bahubali Danawade, Special P.P.)
This criminal appeal is filed under Section 374(2)
CR.P.C. praying to set aside the Judgment dated 28.12.2012
passed by the Spl. Judge, Prevention of Corruption Act,
* Corrected vide Court order dated 18/09/2014
2
Bangalore Urban District, Bangalore City in Spl.
C.C.No.66/2007 convicting the appellant/accused for the
offence P/U/S 7 and 13 (1)(d) P/U/S 13(2) of Prevention of
Corruption Act, 1988.
This appeal having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court made the following:
JUDGMENT
This appeal is preferred by the appellant being aggrieved by the judgment and order dated 28.12.2012 passed by the Additional Sessions Judge and Special Judge for Lokayuktha cases, Bangalore Urban District in Spl. C.C. No.66/2007 convicting the appellant accused for the offence punishable under Section 7 of the Prevention of Corruption Act sentencing him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of five months and further convicting the appellant accused and sentencing him to undergo rigorous imprisonment for a period of 1½ years for the offence under Section 13(2) for violation of the provisions of Section 13(1)(d) of the said Act and also to pay fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 3
2. The case of the prosecution in brief as per the averments in the complaint Ex.P.24, one Badarinath filed a complaint to the Deputy Superintendent of Police, Lokayuktha City Division, Bangalore alleging that he availed a loan of Rs.1,87,000/- from KSFC in the year 1997. Subsequently, the unit became sick and after six months, the KSFC auctioned the plant and machinery in the year 2002. During auctioning or from the date of closure, the complainant was not informed nor served with any notice for closure of the loan account. For availing loan, he has deposited Rs.75,000/- as an FD as collateral security. Suddenly, after seven years the issue opened up and the concerned officer Mr. Vasanth Kumar, who is the appellant accused, called up the complainant asking him to meet him after office hours at Malleswaram on 3.12.2005 and threatened him that he has to pay Rs.8.00 lakh towards dues to KSFC. The complainant was shocked to know the dues and requested the accused to settle the issue for the balance of the amount which was due after auctioning the 4 machinery by adjusting FD. He has also given the details as below:
Loan amount - Rs.1,87,000/-
machinery auctioned - Rs.30,000/-
FD with interest - Rs.1,27,000/-
Due to pay to KSFC - Rs.30,000/-
3. For closure of the loan, the complainant has to pay and KSFC is demanding Rs.8.00 lakh. For the principal amount of Rs.8,00,000/-, the appellant is demanding Rs.1,50,000/- as bribe and he visited their office on 6.12.2005 and demanded money of bribe. It is also alleged that in this connection, appellant visited complainant's office on 7.12.2005 at 2.00 p.m. and the complainant requested the Lokayuktha police to take necessary action against appellant. It is further alleged that the complainant personally requested the Lokayuktha to get him to be relieved from appellant and to help him to settle the issue for the principal amount. The appellant, during his visit to the office of the complainant on 6.12.2005, informed that he will close the case for the principal of Rs.30,000/- balance. It is 5 further alleged that for this, Rs.1,50,000/- was asked as bribe and the same amount was to be distributed to AGM, DGM and Head office people and to start the process, advance of Rs.50,000/- to be paid by cash and the balance of Rs.1,00,000/- to be paid by cash on closure of the case. The appellant has threatened the complainant that Rs.8.00 lakh will be recovered from him, if advance is not paid. Since complainant is not interested to pay Rs.50,000/- as bribe to appellant Vasanth Kumar to get his work done, he requested the Lokayuktha police to take action as per law.
4. On the basis of the said complaint, FIR was registered against the appellant accused as per Ex.P.36 for the alleged offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. After investigation, police filed the charge sheet for the said offences. When the charge was framed against the appellant accused for the said offences, he denied the charge and claimed to be tried. The prosecution examined eight witnesses as P.Ws.1 to 8 and got marked the documents Exs.P.1 to 39 and got marked the material objects as M.Os. 6 1 to 13. After hearing the arguments on both sides and considering the merits of the case, ultimately, the Special Court has convicted the appellant-accused for the said offences.
5. Heard the arguments of the learned Senior Counsel appearing for the appellant-accused and the learned Special Public Prosecutor appearing for the respondent - Lokayuktha and perused the decisions relied upon by them.
6. Learned Senior Counsel for the appellant, during the course of the arguments, submitted that as per the allegations made in the complaint Ex.P.24, it is said that the complainant was in due to make payment of the loan amount with interest to the KSFC and in that connection, the appellant-accused who was working as recovery officer demanded bribe amount of Rs.1,50,000/- and out of that, on the date of the trap, the appellant-accused accepted the bribe amount of Rs.50,000/- from the complainant. He further submitted that looking to the oral evidence of complainant P.W.7 and the shadow witness who has been 7 examined as P.W.1, there is no satisfactory and cogent evidence placed before the trial court that the accused has demanded and accepted the bribe amount from the complainant. Learned Senior Counsel made the submission that the object of sending the shadow witness along with the complainant is to have corroboration of the say of the complainant from independent evidence. He submitted that in this case, looking to the evidence of P.W.1 shadow witness, he has not at all stated before the Court that he has heard the conversation between the complainant and the appellant-accused. On the contrary, his evidence is that he was asked by the appellant-accused to stay at the hotel itself and the complainant and the appellant-accused together went in a Maruthi van. He made the submission that this itself goes to show that P.W.1 the shadow witness does not know as to what has transpired between the accused and the complainant. Learned Senior Counsel made the submission even with regard to the evidence of P.W.7- complainant, it is clear that the appellant accused has not received any amount from the complainant and the complainant himself has stated specifically that the 8 appellant-accused has refused to receive the amount and hence, he kept it in the dash board of the vehicle. The panchaname so also the evidence of other witnesses is to the effect that the amount is taken out from the dash board and not from the person of the appellant-accused. The learned Senior Counsel also made the submission that the appellant- accused has not received the alleged bribe amount, which is supported by the evidence of prosecution witnesses and the material objects that when the hand wash of the appellant- accused was taken in the sodium carbonate solution, there was no change in the colour of the solution. He further made the submission that the appellant-accused when working as a recovery officer in the KSFC, he was very strict in his work and also in taking the coercive steps for recovery of the loan amount, which was due to the KSFC. About this, even the prosecution witnesses has spoken that the appellant-accused was one of the sincere and honest workers. He made the submission that as per the Rules and bylaws of the KSFC, the appellant-accused was not authorized to take decision in respect of waiving the loan amount of any borrower and the decision has to be taken by 9 the Board. Hence, the question of the appellant-accused making promise to the complainant that if he pays bribe amount of Rs.1,50,000/-, his entire due amount would be settled, does not arise. The appellant-accused was authorized to ascertain the properties of the borrowers in order to take steps for recovery of the due amount and because of this reason, the complainant who was in due in a sum of Rs.8.00 lakh to the KSFC, in order to take revenge against the appellant-accused, has filed the false complaint making false allegations against the appellant. The learned Senior Counsel also made the submission that the complainant in his evidence has deposed that he has cleared the loan and there is no due to the KSFC. If that is so, there was no reason for the appellant-accused for taking any steps for recovery of the loan amount. He further made the submission that this evidence of the complainant is contrary to the evidence of the officers of the KSFC who have clearly deposed that the complainant was in due to the tune of more than Rs.8.00 lakh. These important aspects were not at all taken into consideration by the trial court and it has wrongly convicted the appellant-accused. The approach of the trial 10 court in appreciating the oral and documentary evidence is perverse and capricious. The learned Senior Counsel drew the attention of this Court to the relevant portions in the deposition of the prosecution witnesses. He made the submission that the materials placed on record go to show that the appellant-accused individually was not in a position to show any favour to the complainant in settlement of the due amount. Hence, he submitted that to allow the appeal and set aside the impugned judgment and order. In support of his contention, the learned Senior Counsel relied upon the following decisions.:
1. AIR SCW 2014 P - 2080 (B. Jayaraj V/S State of A.P)
2. 2013(6) SUPREME P-1 (State of Punjab V/S Madan Mohan Lal Verma)
3. CRL. A. 1527/2002 D.D. 20/08/2010 (B T Ramesh V/S State by CBI/SPE/ Bangalore)
4. CRL. A. 2667/2006 D.D. 24/7/2012 ( Kadappa V/S The State of Karnataka)
5. MANU/SC/0964/2011 (P. Parasurami Reddy V/S State of A.P.)
6. CRL. A. 1839/2012 D.D. 22/11/2012 (Rakesh Kapoor V/S State of Himachal Pradesh) 11
7. As against this, learned Spl. P.P. appearing for the respondent State, during the course of the arguments, submitted that the complainant-P.W.7, who has supported the case of the prosecution has clearly deposed about the demand and acceptance of the bribe amount by the appellant accused. He submitted that even P.W.1 shadow witness also supports the case of the prosecution. In the evidence of complainant, it has come on record that when the complainant has offered to pay bribe amount, the accused himself told that KSFC Board have taken a decision not to touch the bribe amount and asked the complainant to keep it in the dash board of the vehicle. Hence, this itself goes to show that there was demand and acceptance of the bribe amount. He further submitted that looking to the judgment and order impugned herein, the trial court has taken into consideration all the aspects of the matter and the evidence, both oral and documentary evidence and has rightly came to the conclusion in convicting the appellant-
accused. No illegality has been committed by the trial court. He submitted that there are no valid grounds to allow the appeal and to set aside the judgment and order of the trial court and hence sought to dismiss the appeal. In support of his arguments he relied upon the following decisions: 12
1. 2012 AIAR (Criminal) 497 -
(Mukut Bihari & Another V/s State of Rajasthan)
2. AIR 2001 SC 318 -
(M Narsinga Rao V/S State of Andhra Pradesh)
3. AIR 1998 SC 1474 -
(State of Uttar Pradesh V/s Zakaullah)
8. I have perused the oral evidence of P.Ws.1 to 8, documents Exs.P.1 to P.39 with sub markings, material objects M.Os.1 to 13. I have also perused the decisions relied upon by the learned Senior Counsel appearing for the appellant-accused and the learned Special Public Prosecutor appearing for the respondent - Lokayuktha.
9. Let me consider as to whether the prosecution has placed the cogent and satisfactory materials to prove the charge against the appellant accused that he demanded bribe amount of Rs.1,50,000/- from the complainant P.W.7 and whether on the date of the trap, the appellant-accused has accepted Rs.50,000/- as part of the bribe amount, and whether the trial court has considered the materials on record, both oral and documentary properly in coming to the right conclusion in the matter.
10. P.W.7 - the complainant who is examined before the Court, no doubt, has stated that the appellant-accused 13 demanded bribe amount of Rs.1,50,000/- and asked to arrange Rs.50,000/- immediately to show the official favour to the complainant in connection with his loan amount and as the complainant was not interested to give the bribe amount, he approached the Lokayuktha police and made a complaint as per Ex.P.24.
11. Now, let me consider as to what is the evidence placed by the prosecution to prove the said allegations. P.W.1-L.Venkatesh has been examined who according to the case of the prosecution is a shadow witness in the case and who was instructed by P.W.8 that he has to accompany the complainant to the office of the complainant at Wilson Garden and he has to observe and over hear the conversation going on between the complainant and the appellant accused with regard to demand and acceptance of the bribe amount. In the examination in chief, P.W.1 has deposed that in the Lokayuktha office, the entrustment mahazar proceedings were conducted as per Ex.P.2 and he has also signed the same as per Ex.P.2a. He has also spoken that Lokayuktha inspector took some photographs of entrustment proceedings in the Lokayuktha office as per 14 Exs.P.3 to P.6. He has further deposed that on 7.12.2005, at about 2.00 p.m., himself, C.W.3, complainant, Lokayuktha inspector Sri. Ram Mohan, Lokayuktha inspector Sri Shekar, and his staff left the Lokayuktha Office in Maruthi Van to Chandrika hotel located at Cunningham Road. The Vehicle was stopped at the distance of about 100 km from Chandrika Hotel. He has further deposed that Lokayuktha inspector sent him and complainant to meet the accused. Himself and complainant went inside the Chandrika Hotel and sat on the chairs. After 5-10 minutes, the accused came there. The complainant asked the accused as to whether he has brought the statement. P.W. 1 has further deposed that the complainant and accused got up and asked him to order for coffee and told him that they would come back. The complainant and accused started going out of the Chandrika Hotel. He also got up and started following them. The complainant and the accused crossed the road and went near the Omni van. The complainant and accused got into the said omni van and he also went near the said van. On seeing P.W.1, the complainant asked him to wait there and they would come back. Thereafter, the said 15 omni van in which the complainant and the accused were sitting went on the road which was on the right side of the Chandrika hotel. P.W.1 has further deposed that immediately, Lokayuktha inspector came near him and went to the said place in two auto rickshaws, in the direction in which the said Omni van went. When the Omni van was proceeding towards Cunningham road, the complainant was holding kerchief in his hand. When the said Omni van reached Cunningham road, the drivers of the auto rickshaws in which they were moving, stopped their auto rickshaws in front of said Omni van. The Lokayuktha inspector got opened the door of the said Omni van. In the said van, the complainant and accused were sitting. The appellant- accused was driving the said vehicle. The Lokayuktha inspector disclosed his identity to the accused. The Lokayuktha inspector asked the complainant as to where is the money. The complainant told that he has kept the money in the dash board of the Omni van. Lokayuktha inspector got removed the said money from the dash board through C.W. 3 Suresh Kumar. P.W.1 has further deposed that the Lokayuktha inspector got prepared some solution in 16 a bowl and in the said bowl, the right hand of the accused was washed and there was no change in the colour of the solution. Thereafter, the left hand fingers of the accused were washed in the freshly prepared solution. There was no change in the colour of the solution. The right and left hand wash solution were taken in the bottle as per M.Os. 2 to 5. In the dash board of the Omni van, there was cash of Rs.50,000/-. In the cross examination by Spl.P.P., P.W.1 has deposed that he has not stated before the Lokayuktha police that before he left the Lokayuktha Office, the accused spoken to the complainant to his mobile and told that it will take time to come to his office and asked the complainant to come to the place which is near to both of them. The complainant asked the accused as to which place, and for that, the accused asked the complainant to come to Chandrika hotel, Cunningham road as per Ex.P.18. He has further deposed that in his statement before the Lokayuktha police, he has not stated that when himself and complainant were waiting near Chandrika hotel, the accused came there and the complainant spoken to accused about his work and showed some documents and gave them to complainant and 17 at that time, the accused asked the complainant as to whether he has brought and offered to give the bribe money of Rs.50,000/- to the accused. The accused told the complainant that due to heavy rush of the people, complainant should give money there itself. He further deposed that in his statement before the Lokayuktha police, he has not stated that the complainant showed the accused who was sitting in the driver seat of Omni van and told that he is the same person who demanded bribe from him and that when he offered to give bribe money to him, he instructed him to keep the money in the dash board of his car and that accordingly, he kept the bribe money in the dash board of his car as per Ex.P.20. He has also deposed that he has not given the statement before Lokayuktha police stating that the tape recorder produced by the complainant was played in his presence and in the said tape recorder, there was recording of conversation between the accused and the complainant about the accused asking the complainant to keep the bribe money in the dash board and also about saying of the accused that in his office, they have 18 decided not to touch the bribe amount in hand as per Ex.P.21.
12. P.W.7 is the complainant. In the examination in chief, P.W.7 has deposed that he has borrowed term loan of Rs.1,87,000/- from KSFC in the year 1997 for the purpose of establishing plant and machinery. He had not paid the loan for one year to run the business. During the said period, accused approached him and demanded to pay interest in respect of loan. He did not pay interest. One day during the year 1999, KSFC seized the unit and auctioned the plant and machineries which was owned in the unit. He become unemployed from 1999-2003. On 31.10.2003, he started a business in the name of Micropore and he has been continuing the business. During the year 2005, he received a call from the accused that loan which he has taken from KSFC to the tune of Rs.1,87,000/- has become Rs.8.00 lakh and asked him to visit after office hours. Accused told him to meet at 6.00 p.m. at Shanthi Sagar hotel, Malleswaram. Thereafter, on that day, at about 6.00 p.m., he met the accused in the Shanthi Sagar hotel situated at Malleswaram. 19 The accused told him that the term loan availed by him at Rs.1,87,000/- including the interest had become Rs.8.00 lakh and the accused has also requested him that not to pay Rs.8.00 lakh and he will settle it to the principal amount and for settling the same, the complainant has to pay the accused Rs.1.50,000/- as bribe. The above said talks between him and the accused took place in Shanthi Sagar hotel, Malleswaram on 5.12.2005. P.W.7-complainant has further deposed that on 6.12.2005, the accused came to his office at Lalbagh Road, Micropore. The accused asked him to pay Rs.50,000/- on that day, otherwise he will seize the complainants' existing house and also the business premises situated in Double Road. Then there had been an agreement between him and the accused. Then he took time to pay the amount on the next day. Again on next day morning, the accused called the complainant by mobile phone and enquired him as to whether the amount is ready. Then the complainant asked the accused to give the statement of accounts in respect of the loan and he will go through it and he will pay the amount. Then he straight away went to the Lokayuktha office and lodged a complaint as per Ex.P.24 20 and P.24(b) is his signature. P.W.7-complainant has further deposed that in the Lokayuktha Office, he has produced the amount of Rs.50,000/- (i.e., Rs.1,000 x 50). Phenolphthalein power was smeared to the currency notes and Suresh after verifying his said pocket on the left side kept the amount in the pocket of the complainant. He was instructed to pay the amount only if it was demanded by the accused. He was also given the tape recorder. He was instructed to flash the signal by wiping his face in case of the demand and acceptance of the amount. He has further deposed that when they were about to go to their office at Wilson Garden, he received a telephonic call from the accused to change the place and to meet at any center point. Accordingly, venue was fixed to be Chandrika hotel, Cunningham road. They left the office and reached Cunningham road by 2.15 p.m. The Vehicle was stopped at the distance of 60 ft from the said hotel. Himself and Venkatesh proceeded towards the Chandrika hotel and the accused arrived the place within ten minutes and asked him as to whether he had brought the amount. The complainant said that he has brought the amount and went to give the 21 same, but the accused said it should not be there and asked him to come out. They went outside. The accused asked P.W.1 shadow witness to stay back and ordered for the tiffin and asked him to enter the Maruthi van vehicle of the accused and to sit in the said vehicle and they went for a ride. The complainant has further deposed that after moving for a while, he told the accused that he is giving the amount of Rs.50,000/- being the advance amount, out of the total amount of Rs.1,50,000/- and the accused said that KSFC officers have decided not to touch the money and asked him to put it in the dash board of the vehicle. Accordingly, the complainant put the amount in the dash board of the vehicle. After moving for a while in the car, it came back towards Cunningham road and when it was turning, he passed the signal by wiping his face and it was seen by the Lokayuktha police. When the amount of Rs.50,000/- was recovered from the dash board, there was also a bill of Maruthi Service station, which was also seized as per Ex.P.15. The statement of loan account given by the accused is marked as Ex.P22.
22
13. In the cross examination by the learned Counsel for accused, P.W.7-complainant has deposed that he has cleared the loan during 1990. He admitted the suggestion as true that the cheque issued by him for Rs.50,000/- to KSFC during 2000 was dishonoured and the appellant-accused was the recovery officer at that time. He admitted the suggestion as true that he had borrowed Rs.5.00 lakh from SBH for Pavanasutha. He denied the suggestion that he lodged a false complaint though the accused had not demanded any money. He denied the further suggestion that he has filed the complaint to escape from the liability. He does not known as to how the amount was Rs.8.00 lakh. There was a marking on the cassette of the tape recorder after they were sealed. He has not observed as to whether there was any mark on the cassette. He denied the further suggestion that he has voluntarily put the amount in the dash board to trap the accused.
14. So far as the evidence of P.W.8-B.S. Rama Mohan, it is helpful for the prosecution for proving recovery of the amount and not for the proof of fact of demand and 23 acceptance of the bribe amount. So far as the demand and acceptance of bribe amount, the complainant P.W.7 and the shadow witness P.W.1 are the important witnesses. He had admitted that even according to the case of the prosecution, the amount of Rs.50,000/- said to be a bribe amount is not seized or recovered from the person of the appellant-accused. Admittedly, it is seized from the dash board of the Maruthi Omni van. Even it is the case of the prosecution through the mouth of the witnesses that when the hand wash of the accused both right and left hand was taken in the sodium carbonate solution prepared in bowls, it has not turned into pink colour.
15. Looking to the oral evidence of P.Ws.1 and 7, there is no consistency with regard to the material facts. On the contrary, there are contradictory versions of P.Ws.1 and
7. Looking to the evidence of P.W.1-shadow witness, it is not his deposition before the court that when the accused came to Chandrika hotel, P.W.1 and P.W.7 complainant were waiting and the accused demanded bribe amount in the presence of P.W.1 at the said place. But his evidence is that 24 complainant asked the accused as to whether he has brought the statement of account and for that, the accused told that they can go outside and the complainant asked the shadow witness to stay in the hotel itself and to order for coffee and that they will come back. This itself goes to show that in the presence of shadow witness, the accused has not demanded the bribe amount. According to the evidence of P.W1 shadow witness, it is the complainant himself asked him to stay back at the hotel itself. So this go to show P.W.1 shadow witness does not know as to what has transpired between the complainant and the accused when they were moving in the vehicle. It is no doubt true that P.W.1 was treated as hostile witness and with the permission of the court, the Public Prosecutor had cross examined him and through his evidence, the prosecution got marked the statement as per Exs.P.18 to 21. But the important fact to be taken into consideration is Exs.P.18 to P.21 were not at all confronted to P.W.8, the investigating officer who is said to have recovered the statement of P.W1. Therefore, unless and until, Exps.P.18 to 21 put to P.W.8 the investigating officer, during the course of his evidence and get confirmed 25 that P.W.1 shadow witness gave the statement before him as per the portions marked at Exs.P.1 to P.21, it cannot be said that the prosecution has proved Exs.P.18 to P.21. Therefore, the Court cannot look into these exhibits and this important aspect has been completely ignored by the trial court. If Exs.P.18 to 21 are excluded from consideration, looking to the remaining evidence of PW.1, it is not helpful to the prosecution in establishing the fact that the accused has demanded and accepted the bribe amount.
16. Therefore, the only evidence is the evidence of the complainant-P.W.7. He has deposed that when himself and appellant-accused were moving in the van and when he wanted to give the bribe amount to the accused, the accused told him that KSFC people have decided not to touch the bribe amount and asked him to keep it in the dash board. Firstly, he accepted the self serving testimony of P.W.7. There is no corroborative evidence to the effect that the accused has demanded and accepted the bribe amount. Even with regard to the evidence of P.W.7, its credibility can be appreciated with the help of other materials placed on 26 record. As per the case of prosecution, the complainant- P.W.7 as well as the shadow witness-P.W.1 were asked to go to the office of the complainant at Wilson garden and after the accused coming there demanding and accepting the bribe amount, the complainant has to give prearranged signal by wiping his face with the hand kerchief. As per the evidence of complainant, it is no doubt true that he has stated that when the van returned back to the turning point at Cunningham road, he gave the signal by wiping his face with the hand kerchief. But on the contrary, looking to the evidence of P.W.1 shadow witness, who travelled in the auto rickshaw along with the other trap party people, he has not at all stated that the complainant gave the pre arranged signal by wiping his face with the hand kerchief. But what he has stated is that at a particular place both auto rickshaws were driven in front of the Maruthi van in which the complainant and accused were proceeding. In the evidence of P.W.1 shadow witness, it has also come on record that through the glasses of the van, they were not able to see as to who were there inside the vehicle. When that is so and when there were no pre arranged signal from 27 P.W.7-complainant, the question arises as to how they can go in front of the omni van and stop the auto rickshaw and as deposed by P.W.1 shadow witness, why the complainant has not given the pre arranged signal. The doubt also arises in the mind of the court as to whether really the complainant gave such signal by wiping his face with the hand kerchief as deposed by him.
17. Though it is deposed by P.W.7 in his evidence that on 5.12.2005, the accused asked him to come to Shanthi Sagar hotel at Mallewaram and he went there and at the said place, the accused demanded bribe amount. but this aspect has not been satisfactorily established with cogent evidence. Even with regard to the said aspect, it is only the statement of P.W.7 and it is not corroborated by any independent witnesses. Therefore, looking to the prosecution materials, again doubt will arise because in the complaint at Ex.P.24, it is mentioned that the complainant was asked to come to the hotel at Malleswaram on 3.12.2005, whereas in the oral evidence the date is mentioned as 5.12.2005. Even with regard to date '3.12.2005', in the complaint, the figure '3rd' 28 is also over written and it is not clearly visible as to what was the original figure mentioned earlier, before it was over written and corrected as '3rd'.
18. The credibility of the evidence of P.W.7 complainant is also to be stated with the help of other materials placed on record by the prosecution itself. In his cross examination by the counsel for the accused, P.W.7 has deposed that in the year 1990 itself, he has cleared the loan of KSFC which is contrary to the evidence of prosecution witnesses themselves. The Manager of KSFC head office by name one Mr. Bharadwaj has been examined as P.W.4. In his evidence, in the cross examination at page No.3, he has deposed and admitted the suggestion as true that M/s.Sumathi Polimers had not repaid any loan to the Corporation. As on 7.12.2005, M/s.Sumathi polymers was due to the KSFC in a total sum of Rs.8,19,867/-. So the said evidence of P.W.4 who is a witness on the side of the prosecution goes to falsify the evidence of P.W.7 complainant that he had paid the entire loan amount and cleared in the year 1990 itself. Therefore, this also goes to show that the 29 complainant P.W.7 is not fair and honest in giving true facts before the Court.
19. The case of the prosecution is that the accused has demanded and accepted the bribe amount from the complainant to show him official favour that is to settle his loan due to the KSFC by receiving the bribe amount of Rs.1,50,000/-. But it is the contention of the accused that to settle the dues as onetime settlement, it is only the Board of KSFC which is authorized to take a decision and not the individual officers of the KSFC. This will be cleared again through the evidence of P.W.4-Mr. Bharadwaj, the Manager KSFC head office. In the cross examination, P.W.4 has deposed at para No.4 that the KSFC has framed Rules for one time settlement of loans. The accused has no powers to bring one time settlement. One time settlement of loans can be done only by Managing Director and the board of KSFC. He has also deposed that as per the Rules for one time settlement, the borrower has to make an application to the KSFC for one time settlement and should also deposit 25% of the loan amount due. He has deposed that as per the 30 records, the complainant Badarinath had not made any application to the Corporation for one time settlement and he had not deposited any money towards one time settlement. He has further deposed that on perusal of the records, he came to know that M/s. Sumathi polymers were a chronic defaulters. So this itself goes to show that accused was not in a position to give concession of one time settlement of the loan due to the complainant and it is only the Managing Director and the Board of KSFC who were authorized to do the same. In view of this material on record through the evidence of P.W.4, the Manager of the KSFC again a serious and reasonable doubt will arise in the mind of the court whether really the accused demanded and accepted the bribe amount in order to show the official favour to the complainant as alleged by the prosecution.
20. The materials on record go to show that the complainant has borrowed loan not only from KSFC and also from the other financial institutions. So far as the accused is concerned, the Manager of KSFC P.W.4 himself deposed in his evidence at page No.3 of the deposition that the accused 31 is sincere and honest worker. He was vigorously pursuing the recovery matters as a result he had invited the wrath of the borrowers and defaulters. During the course of cross examination of P.W.7 complainant, it is the specific suggestion to P.W.7 that in order to escape from the loan liability, he has filed false complainant against the accused.
21. I have also perused the decisions relied upon by the learned SPP appearing for the respondent along with the memo dated 10.7.2014.
22. In Mukut Bihari's case (2012 AIAR (Criminal) 497), their Lordships of the Hon'ble Supreme Court have laid down the proposition at Head Notes as under:
" A. Prevention of Corruption Act, 1988, Secs. 13(1)(d) read with 13(2), 7, 20 and I.P.C., 1860, Sec. 120B - Offence punishable under 1988 Act - Demand of illegal gratification is sine qua non for constituting an offence under the Act - Mere recovery of tainted money is not sufficient to convict the accused is not sufficient to fasten the guilt in absence of any evidence with regard to demand and acceptance of the amount as illegal gratification-But the burden 32 rests on the accused to displace the statutory presumption raised under Section 20 of the Act by bringing on record evidence, either direct or circumstantial to establish with reasonable probability that the money was accepted by him other than as a motive or reward as referred to in Sec. 7 of the Act-While invoking the provisions of Section 20 of the act, the Court Section 7 of the Act - While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of proof beyond all reasonable doubt.
B. Prevention of Corruption Act, 1988, Sections 7, 13(1)(d) read with Section 13(2) -
Offences punishable under - Evidence of complainant in the case of - Must be tested in the same way as that of any other interested witness - In a proper case the Court may look for independent corroboration before convicting the accused person since the complainant is an interested and partisan witness concerned with the success of the trap. "
Therefore, looking to the said decision, it is observed by their Lordships that the evidence of complainant in the case must be tested in the same way as that of any other interested witnesses and in a proper case, the Court may 33 look for independent corroboration before convicting the accused person since the complainant is an interested and partisan witness concerned with success of the trap. Therefore, in this case as I have already observed above, regarding demand and acceptance of bribe amount, it is only the evidence of the complainant before the Court not supported by the independent witness P.W.1 who is a shadow witness. Even with regard to the evidence of P.W.7 complainant also, I have discussed in detail as to how it is not trustworthy to be believed by the Court.
23. With regard to decision in M. Narsinga Rao's case (AIR 2001 SC 318), in the said reported decision, the facts established that the prosecution has proved that the accused received gratification from the complainant. But here in the case on hand, I have discussed in detail with reference to the oral evidence of the parties so also the documentary evidence that the prosecution was not able to place the materials to show that the accused has demanded and accepted the bribe amount from the complainant. Therefore, in the absence of factual proof of the allegations, the question of drawing 34 presumption as per Section 20(1) of the Prevention of Corruption Act does not arise.
24. With regard to the decision in Zakaulla's case (AIR 1998 SC 1474), the Hon'ble Supreme Court has laid down the proposition as under:
" A. Prevention of Corruption Act (2 of 1947), S.5(2) - Bribery - Proof - Delinquent official caught red-handed in trap laid by trap officer -
Complainant's evidence corroborated by evidence of trap officer - Complainant's evidence cannot be rejected merely because he was aggrieved against the bribe taker - Fact that trap officer successfully trapped delinquent is no ground to conclude his animosity against the delinquent - Order of High Court acquitting delinquent on patently wrong and tenuous considerations not proper-Set aside. (B) Evidence Act (1 of 1872), S. 3 - Independent witness - Case involving police raid or search -
Acquaintance of independent witness with police or fact that he helped police action - Would not by itself discredit evidence of said independent witness.
35(C) Prevention of Corruption Act (2 of 1947), S.5(2) - Bribery case - Evidence of Trap Officer - Can be relied on even without corroboration.
Penal Code (45 of 1860), S. 161.
(D) Prevention of Corruption Act (2 of 1947), S. 5(2) - Bribery - Trap Case - Accused caught red- handed with tainted currency notes - Non-
sending of sample of solution used for conducting Phenolphthalein test to chemical examiner - Would not vitiate trap.
Penal Code (45 of 1860), S. 161. "
With reference to the above decision, in this case, no doubt, the investigating officer who laid the trap has been examined as P.W.8. Even according to the evidence of P.W.8 also, it is not the case of the prosecution that the accused person caught red handed when he received the bribe amount from the complainant. Admittedly, as per the evidence of P.W.8, the alleged bribe amount is said to have been taken out from the dash board of the vehicle in which the complainant and accused were travelling. According to the prosecution case, when the hand wash of the accused both left and right hand were taken in the solution it was not changed into pink colour. The prosecution has not satisfactorily proved the fact that when the complainant wanted to give money to the 36 hands of the accused, the appellant accused told the complainant that KSFC Board has taken a decision not to receive the money and hence, asked the complainant to keep the said amount in the dash board of the car. Under these circumstances and in view of my above discussions, the entire materials both oral and documentary evidence, I am of the opinion that the decisions cited supra will not come to the aid and assistance of the prosecution case to say that the appellant accused has committed the alleged offences.
25. Looking to the materials on record, both oral and documentary, I am of the opinion that the trial court has not properly appreciated both oral and documentary evidence and has wrongly convicted the accused person for the said offences. The approach of the trial court as to the appreciation of the oral and documentary evidence is also perverse and capricious. Hence, there are valid and justifiable grounds for this Court to interfere into the judgment and order of the trial court.
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26. In the result, the appeal is allowed. The judgment and order dated 28.12.2012 passed by the Additional Sessions Judge and Special Judge for Lokayuktha cases, Bangalore Urban District in Spl. C.C. No.66/2007 is hereby set aside. The accused is acquitted of the offences punishable under section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act and the bail bonds and surety bonds are hereby discharged Sd/-
JUDGE Cs/-