Karnataka High Court
C Nagarajaswamy vs State By Cbi/Spe on 4 June, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 04TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.775 OF 2008
BETWEEN:
C. Nagarajaswamy,
Junior Telecom Officer,
Office of the Assistant Engineer,
Shankarpuram Exchange,
No.127/3, Bull Temple Road,
Bangalore - 560 019,
Resident of No.1581,
1st Cross, 3rd Main,
Chandra Layout,
Bangalore - 560 040. ...APPELLANT
(By Shri. S.K. Venkata Reddy , Advocate)
AND:
State by CBI/SPE,
Bangalore. ...RESPONDENT
(By Shri.C.H. Jadhav, Senior Advocate )
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
2
appellant against the judgment dated 21.6.2008 passed by the
XXI Additional City Civil and Sessions Judge and Special
Judge for CBI Cases, Bangalore, in Spl.C.C.No.152 of 1999 -
convicting the appellant/accused for the offence punishable
under Section 7 and also under Section 13(1) read with Section
13(2) of the Prevention of Corruption Act, 1988, and sentenced
to undergo R.I. for a period of one year and also to pay a fine of
Rs.10,000/- in default to undergo imprisonment for three
months for the offence punishable under Section 7 of the
Prevention of Corruption Act and further sentenced to undergo
R.I. for a period of 16 (sixteen) months and also to pay a fine of
Rs.15,000/- in default to undergo R.I. for a period of 6 months
for the offence punishable under Section 13(1)(d) read with
Section 13(2) of Prevention of Corruption Act, 1988.
This appeal having been heard and reserved on
28.05.2013 and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
JUDGMENT
This is an appeal against conviction by a judgment of the XXI Additional City Civil and Sessions and Special Judge for Central Bureau of Investigation Cases, Bangalore convicting the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- for an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 3 (Hereinafter referred to as the 'PC Act', for brevity) and to undergo rigorous imprisonment for 16 months and to pay a fine of Rs.15,000/- for an offence punishable under Section 13(1)(d) read with 13(2) of the PC Act.
2. The facts of the case are as follows :-
One Veerapratap, who was said to be a resident of Padarayanapura, within the jurisdiction of the Shankarapuram Telephone Exchange, had obtained a telephone landline connection to his residential house. Later on , it transpires that he had also set up a Pawn Broker's Shop in the name and style of B.L.Enterprises, in the year 1993, in the same building.
It transpires that he had, with the aid of a telephone line man, had obtained a parallel landline connection to his shop, which was wholly unauthorized. It transpires that this was discovered by another lineman in December 1994 when he visited the shop and he had informed the same to his senior officer, namely, the present appellant Nagaraj Swamy, who was 4 at that point of time, working as a Junior Engineer at the said Telephone Exchange. On 4.12.1994, the appellant is said to have made a visit to the complainant's building and verified that there was indeed an unauthorized connection and it is claimed that the appellant informed the complainant that this was a serious irregularity and it would attract a heavy fine of atl east Rs.8,000/-. It is further alleged that the appellant stated that the matter could be hushed up and that he would not report the matter for any further action, if he was paid a bribe of Rs.4,000/-. It is further alleged that there was some haggling about the bribe amount and the appellant ultimately agreed to receive a bribe amount of Rs.2,000/- in order not to take any further action.
The said Veerapratap had thereafter made a complaint to the Superintendent of Police (SP), Central Bureau of Investigation (Hereinafter referred to as the 'CBI', for brevity), on 8.12.1994. The same was reduced to writing. On the SP's direction, his subordinate one C.Prabhakaran, had secured the 5 presence of two employees of a bank, one Rama Murthy and one Lenin Kumar and after explaining and demonstrating the manner in which a trap would be executed and in their presence having applied the Phenolphthalein Powder on the currency notes, which were to be used in the trap and after instructing the complainant as to the procedure he should follow in handing over the bribe amount, on the demand made by the complainant, the entire team of the CBI as well as the complainant and the witnesses left for the office of the appellant on the same day at about 4.30 p.m. The complainant and Lenin Kumar had proceeded to the desk of the appellant and the appellant is said to have reiterated his demand for the bribe amount and the complainant is said to have acknowledged that he had brought the amount. It is further claimed that the appellant himself had prepared an application on behalf of the complainant, with a request to permit the parallel connection to his shop as if there was no such parallel connection already existing, only in order to regularize the same, at which point of 6 time, it transpires that two of the appellant's acquaintances had come to meet him. Therefore, the appellant took the complainant and his two friends to a nearby restaurant by the name of Hotel Sarathi, where they had tea and after paying for the same, at the cash counter, were again returning to the office of the appellant and while walking along the pavement, the appellant is said to have made a demand once again on the complainant for the bribe amount, upon which the complainant had handed over the tainted currency notes to the appellant, who had received it and had put the same in his hip pocket and simultaneously, the complainant having signalled the CBI officials, who were in close proximity and were following them, had immediately caught hold of the appellant and made him remove the cash from his pant pocket. He was then taken to his office desk to draw up the seizure mahazar. While the appellant's hands were washed in Sodium Carbonate solution to verify that he had handled the tainted currency notes. So also after giving him change of clothes, his pant pocket was also 7 washed in Sodium Carbonate solution and the wash was collected and sealed to be placed as evidence in the case. Further proceedings were taken over time. However, the proceedings conducted thereon in case in Spl.CC.No.75/1995, ended in acquittal as there was no sanction obtained in the prosecution of the appellant. This warranted a fresh charge sheet being filed, which was again challenged before this court in Criminal Petition No.330/2000, which was allowed by an order dated 9.1.2002. This had been challenged before the apex court by the CBI in Appeal No.1279/2002 and the same was set aside. The matter was remanded for trial. It is thereafter that the CBI examined 10 witnesses and proceeded to mark 23 documents apart from material objects. The accused was examined under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.PC', for brevity), wherein he contended that the entire case against him was baseless as he had already intimated his superiors in writing as on 4.12.1994 itself about the illegal connection that the 8 complainant had obtained for his shop premises and that on 8.12.1994, the complainant having visited him in the office and when he learnt that the appellant had already intimated his superiors about the illegal connection, the complainant had become furious and that in order to retaliate, has lodged a false complaint. It was claimed that the complainant had taken him by surprise when he was walking along the pavement along with his friends, by suddenly coming from behind and having thrust the currency notes into his hip pocket. The complainant being completely puzzled, had removed the currency notes from his pocket and when he was about to protest against the complainant's conduct, the CBI officers had immediately apprehended him and made it seem that he had voluntarily received the bribe amount and therefore, the entire episode was enacted by the complainant and the CBI personnel. Thereafter, the court having heard both the sides, had framed the following points, for consideration :-9
"1) Whether the prosecution proves beyond reasonable doubt that the accused being a public servant has accepted for himself gratification of Rs.2,000/- as a motive or reward for doing the official act by him and thereby committed an offence punishable Under Section 7 of Prevention of Corruption Act, 1988?
2) Whether the prosecution further process that thereby doing the act mentioned in Point No.1, the accused has committed an offence of criminal misconduct within in the meaning of Section 13 of Prevention of Corruption Act, 1988?
The trial court held point no.1 and 2 in the affirmative. It is that which is in challenge in the present appeal.
3. The learned Counsel for the appellant would contend that the complainant has been examined as PW.7 and it is only the evidence of the complainant, which is available to support the accusation that there was a demand made for bribe by the appellant and upon such demand, he had paid the bribe amount 10 which had been received by the appellant. Though PW.9, one of the shadow witnesses, has in his evidence stated that he saw the complainant removing the tainted currency notes from his shirt pocket and giving it to the appellant, who in turn ,received it, and then placed in it in his hip pocket, PW.10, the investigating officer has, in turn, in his evidence stated that PW.9, a shadow witness, in his statement had not stated that the money was paid by the complainant to the appellant in his presence. Therefore, the version of PW.9 of the sequence of events of the alleged demand and acceptance by the appellant of the bribe amount is made for the first time before the court. The other inconsistent evidence in this regard is that of PW.7, who had stated that when he and the appellant were still at the restaurant, the appellant had demanded the bribe amount and the complainant had removed cash from his shirt pocket and that the appellant had received it, counted the money and then placed it in his hip pocket and it is thereafter they proceeded towards the cash counter of the restaurant and then left the 11 place. These inconsistencies have been held to be inconsequential by the trial court, on the footing that the witnesses were tendering their evidence after a lapse of several years from the date of the incident and therefore it did not dislodge the case of the prosecution. It was also significant that the hand wash collected as evidence in the first instance was not available at the time of the trial and the explanation offered was that it had been destroyed after the earlier trial was concluded as the prosecution did not find it necessary to retain the same, as according to the prosecution, it was not foreseen that the matter would come up for retrial. The learned Counsel would submit that this is an explanation, which cannot be readily accepted. The learned Counsel would further submit that there is material available on record which has been acknowledged in the course of the evidence of the prosecution witnesses themselves, that the appellant informed his superior officers in writing of the parallel connection that was existing in the complainant's shop premises on 4.12.1994 itself and this 12 has been entered in the tappal register maintained in the office of the appellant in the usual course and the said note had not been put up before the superior officers on account of the concerned Clerk not having placed it before the concerned officers, promptly. Therefore, when the irregularity had already been reported for further action, the entire case of the prosecution that on 8.12.1994, the complainant having approached the appellant and the appellant having assured him of helping him on payment of illegal gratification, would not arise, as the report made by the appellant was irreversible and there was no possibility of regularizing the illegal connection, which was purportedly sought to be carried out by receiving the bribe amount. On this aspect, the trial court having held that it was incumbent on the appellant to have tendered evidence, to establish his case, is without reference to Section 315(1)(b) of the Cr.PC which enjoins that the failure of the accused to give evidence shall not be made the subject of any comment by the court nor would it give rise to any presumption against himself. 13 Therefore, the conclusion of the court below that certain matters, which were within the knowledge of the accused, place the burden of proving the same on him, is an incorrect conclusion. Therefore, the learned Counsel seeks that the appeal be allowed and the appellant be acquitted.
4. On the other hand, the learned Senior Advocate Shri C.H.Jadhav, appearing for the Counsel for the respondent would contend that the allegation as regards the demand and acceptance of bribe by the appellant has been established through the evidence of the complainant and the trap laying officer as well as the two panch witnesses. The evidence of these eye witnesses fully corroborates the allegations and therefore, there is every reason to raise presumption under Section 20 of the PC Act. More significantly, the appellant, in his defence, had admitted the recovery of the amount from his possession. His defence, on the other hand, is that it was forcibly thrust into his pocket by the complainant, but there is 14 no evidence to substantiate the same. In any event, such a claim itself is not acceptable as it is not an easy task to thrust the currency notes into a person's hip pocket when he is walking along the pavement, as claimed by the appellant namely, that the complainant had come from behind him while he was going along the pavement with his acquaintances and had forcibly thrust the currency notes into his hip pocket, taking him by surprise. Further, Exhibit P.7 is an application written in the appellant's own hand, on which the complainant has affixed his signature. The date is also mentioned by the appellant, namely, 8.12.1994. The appellant having conveniently claimed that he had made a note of the illegal connection obtained, by the complainant, on 4.12.1994 itself, but it had not been reported to his senior officers by the concerned clerk and therefore his claim that there was no possibility of extending any favour to the complainant by receiving illegal gratification is a theory, which required the appellant to establish by placing cogent evidence and the 15 possibility of having created such a record with the assistance of his colleagues at the office, could not be ruled out in the absence of material evidence being placed before the court and mere filing of certain documents by the appellant to claim that the appellant had made such a note of illegal connection and the same had been made much earlier to the complaint etc., cannot be readily accepted. The handwriting of the appellant on Exhibit P.7, has been established through the evidence of a handwriting expert and in fact, the appellant himself has admitted that it was written by him at the request of the complainant as the complainant was not well-versed in the English language. In the face of which, there is no scope for the appellant to contend that there was no work pending with him as he had already reported the illegal connection. The learned Senior Advocate has, therefore, placed reliance on the following authority, to contend that the appeal be dismissed. 16 State of Andhra Pradesh Vs. P. Satyanarayana Murthy, (2008) 9 SCC 674,
5. In the light of the above rival contentions, insofar as the inconsistency in the evidence of the four witnesses namely, the complainant, the trap laying officer and the two panch witnesses, as to the aspect of demand and acceptance of the bribe amount is concerned, the trial court has found that there are indeed discrepancies in the evidence of the said four witnesses, as recorded at Paragraph-20 of its judgment. But, it has readily risen to the defence of the witnesses holding that none of the witnesses have been treated as hostile and that there is corroboration of material particulars constituting the incident and it would also be necessary to keep in view the credit-worthiness of a witness and therefore given the fact that they were responsible persons and employees of a bank, no mala fides could be attached to their testimony, the court below has held that the witnesses, who were tendering evidence 14 17 years after the incident, are bound to commit errors in giving their account, of the manner in which the incident has taken place and has thus proceeded to accept that there was corroboration of the complainant's case by the said witnesses. However, the law is well-settled that the sine qua non of the ingredients of an offence punishable under section 7 and 13(1)(d) read with section 13(2) of the PC Act would be the demand and acceptance of bribe. In the absence of cogent and consistent evidence to establish beyond all reasonable doubt that the appellant had made a demand for the bribe amount and thereafter the same was handed over by the complainant, strictly speaking, is not established, when there are admittedly inconsistencies in the evidence of the several witnesses. Glossing over the same, would result in a serious consequence against the accused, which also has to be borne in mind. Therefore, the trial court was not justified in overlooking the inconsistencies, while excusing the witnesses and finding a case for the prosecution in the face of the same. Further, the defence 18 claimed by the appellant that he had informed his superiors of the illegal connection on 4.12.1994 itself and the same having been entered in the Tappal Register maintained in the Office of the appellant on 6.12.1994, has been brought on record and PW.9 has also referred to it and the trial court has also taken note of the fact that the statement of the clerk, who maintained the Tappal Register, had been recorded by the Investigating Officer, who had endorsed the same. However, the trial court having taken a view that the appellant, who ought to have tendered evidence in this regard and that any such material would have to be ignored, is unfair to the accused as there was an element of doubt, which is created in the case of the prosecution and the admitted circumstance that Exhibit P.7 was indeed a letter written by the appellant on behalf of the complainant and the explanation offered by the appellant in this regard, would also point to the possibility that the illegal connection could be regularized possibly by the senior officials over the appellant and it was at the request of the complainant 19 that such a letter had been written, would water down the case of the prosecution. In that, there was little scope for tendering bribe to the appellant, when in the usual course, the complainant could get the illegal connection regualrised. Thus, the trial court not having chosen to address the certain material that was available on record, while also glossing over the inconsistencies in the case of the prosecution to the prejudice of the appellant, is hence not sustainable.
Consequently, the findings of the court below are bad in law. Hence, the appeal is allowed. The judgment of the trial court is set aside. The appellant is acquitted. The fine amount, if any, paid by the appellant shall be refunded to him.
Sd/-
JUDGE nv