Karnataka High Court
State Of Karnataka vs T Jayanna on 9 November, 2010
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGAQRE DATED THIS THE 09TH DAY or NovEMBE.R=2o--.iV0-- ,_ BEFORE it it THE HON'BLE MR.JUSTI,CE 1' CRIMINAL. APPEAL N538/2oo'7. C ' BETWEEN: ' State of Karnataka .o . C' ._ = By L0kayuktaPo1ice. ._ (By Sri.S.G.Rajendra Reddy, Advvocapte) ' ? AND: 1. T.Jayanna .. S/o Thimmabovi _ V Aged: 50 Years ' _, I Chief Oifice§r,'ToWi1 Municipality Sira, gi\TatV1ve "of 33' idyanagara ' Chitra.duirga, ~ 2. Sathyiagnarayana, K. V ; 'E':./_o M. C;Mariyap'pa *?.Aged:u 41 Years..... v " Attender, Town Municipality Native of Madhugiri. ...RESPONDEN'I'S my Kivenkatareddy, Advocate) appeal is filed under section 378(1) & (3) Cr.P.C., praying to grant leave to file an appeal against the judgment dated 31.03.2006 passed by the Principal Sessions Judge, Tumkur in , _Speci'a1 Case No.53/2002, acquitting the respondents 1 & 2'/.accused I & 2 for offences under sections 7' & 13(1]{d]{ii}, Vptinishabie under section 13{2} of the Prevention of Corruption Act, 1988. This appeal coming on for final hearing this day, the Court delivered the foiiowmgz __2 1 JUDGMENT
Respondents 1 & 2 (hereinafter referredpytoé 1 & 2') were tried and acquitted for offences H7"
and l3[1)(d)(ii), punishable u:11der"«.s&eoti0_nuHthei'. Prevention of Corruption Act, ('for llshlort. «. Therefore. appellant / Lokayulrta police has .0 Afi1ed'this"appeal§ "
2. I have heard S1*i,.V_S.Gflajendrat-Reddyillearned counsel for appellant / Lokayulital police:'baI'1dlV'S;.:iv1S_;K.Venkata Reddy, learned cou,n«se:l 'for :31' Zjfaccused 1 ('Sr 2.
3. In brief; the .c'a..sbee»ofprosecution is as follows:--
Ijuring the of January 2000, leasehold rights of shops"'si.tuate in Town Municipality Complex at Sira ~ V:V"wvere.V_sold.V:ifi public auction. PW7--Mohamrned Ibrahim was a 2:'succVessfu1_.'pbidder of shop No.14 of the Town Municipal that Sira. He had agreed to pay monthly rent of it 'A :R.s.2V,VO0O/-- and security deposit of Rs.4,25,000/--. Accused 'No.1, who was the Chief Officer of Town Municipality at Sira, IL?) "'§}'v"~*"-fiflrx ' an 3 had to execute agreement of lease in favour of ___PW7 in respect of aforestated shop.
It is the case of prosecution that on 1':
had approached accused No.1 a;.id"requA_ested' _to_'e§tecu,te 7. the agreement of lease. Accuseld.__N'oJ1 islalleged "~hav,; demanded a sum of Rs.15;0f)'0/-- as 'illegal'_:gratification to execute the agreement of l.eas'eVo_:'and._.on the*sa'me day, he received Rs.7,500/-- to bring Rs.7,500/-
and assured to execute pthe a.gre,e:r_1ent':of lease in respect of aforevstatedisliliop,lOri"2i3'.v0_6*.2001, PW"/' had visited the office of Tovsm».Mu.nicipality'.. and met accused No.1. At that time'; accused. again demanded PW'? to pay remaining amount of Rs.7',500/--. PW? not willing to bribe 'V thepx lodged first information as per Ex.P.13 and set criminal law into motion. PW12--H.S.Mar1junath, the _ then*.P;olice Inspector of Lokayukta at Tumkur secured mpacnch witnesses namely PWi--Ramadasappa and PW9-- .:lM.H.Mahesh, explained contents of first information to them and made preparations to trap accused No. 1. PWl2 smeared 1/U -- ('\ .
phenolphthalein powder to currency notes of Rs."/,500/-- (one currency note of Rs.1,000/~ denomination, f1VeVe».c'urrency notes of Rs.500/-- denomination, 38 Curr-e'ncy;_~"«of Rs.100/-- denomination and four currency.,n:oites=1.of._Rs.5'O./ denomination) and entrusted to' ax specific instruction to pay to accuse-d~No.1yp viszdemdanded by him. The Police Inspec'ito:ri~ (PW12~}._ 'had demonstrated phenolphthalein test to reiterated instructions to PW7. 1 to accompany PW?' to"L';bs'Vc:i'veJwhat "ufdovuldvétranspire between PW7 and accused 1 'entered the chamber of accused No.1 an'c:i=.PbW7V enqAuired~'b1Vaccused No.1 about the execution of eeinent oifhlea-S_e,..Accused No.1 enquired PW7 about bribe ' paid bribe amount to accused No.1. Accused H * ANO'. to keep the same beneath a tray on the table fprovnthvof accused No.1. PW7 kept tainted currency notes , 1' 'ibeneath the tray. Accused No.1 called accused No.2 and told to keep tainted currency notes. When accused No.2 kept 11 tainted currency notes in his shirt pocket and proceeding {\f. ,
---5 towards some other room in front of chamber'-of'~a'cc'used No.1, PW7 gave pre-determined signal to other members of raiding party-'appreheéndedf i\'--o.2j' and recovered Rs.7,500/-- from PW12 apprehended phenoiphthalein testzby {inger§.,p'f..,I9%th hands of accused No.1 into 251 Sodium carbonate solution. into pink colour and resu1tant«*soFutio.ri. Wa;s._co--].iectecEVvin aiseparate bottle and the same' ~;xra's. aisouconflducted phenoiphthalein test by dipping hands of accused No.2 into a bowl containing Vearbonate solution. The resultant .soiutiori.Vturned' pink colour and the same was collected ' .V.VAi11.a'isepara:zte- bottle and the same was sealed. Further, shirt " . bocket No.2 was also dipped into a separate bowl coiitaining sodium carbonate soiution, the resultant solution
-- » 't"urned into pink colour and the resuitant wash was collected a separate bottle and the same was sealed. Accused No.2 made a statement that tainted currency notes were given by PW? towards arrears of rent of shop No.14.» of Town Municipality Complex at Sira. Accused No.1 a statement that he has been falsely imp!i_catedV:'*--::d.u'ef'to previous enmity. PW12 completed forI11a--iities"~..:a1id __se'n1;
incriminating articles to Forensic Science. La15oratory.'iiA;Aiter obtaining necessary sanctioiifroni to No.1 and necessary frorna prosecute accused No.2, 'filed' charge sheet against accused 1 <3:
4. oniibegtiali' of prosecution, PW}. to PW13 were e'2;ani.ined.ar'id' as per EX.P.1 to Ex.P.22 were marlcetd so alsornaterial objects as per M.O.1 to i\/1.0.56 were learned trial Judge on appreciation of evidence * gs: 2.
and on hearing learned counsel for parties a guittedaccused
6. In View of acquittal of accused 1 <3: 2, the following points would arise for detez'mination:~ [1) Whether the prosecution has proVedV..th'at':'o.f;.. V. 21.06.2001, accused No.1 being Officer of Town Municipality :at'= $L,;1--._,,f1ad V demanded illegal gratiiication from PW"? as a motiveffior fre_\ivard the agreement of._v's~a.le in respect') No.14 and receivedfvféafpisum -- as illegal gratification"on the same day'? V {2} Whether the_:'pVros'ecutionfVliagf proved in '_fur.theravn'ce.:of'_.such-- demand, on 28.06.2001, if in ffown Municipality at Sira, demanded and received reniaining illegal gratification of Rs.7,500/--
"as a" «motive or reward to execute the :vag:.re--ement of lease in favour of PW7 and No.2 abetted commission of ' .ai"orestated offences by keeping aforestated currency notes in his pocket, thereby accused 1 & 2 committed offences under sections 7 & 13[1)[d}{ii), punishable under section 13(2) of the Prevention of Corruption Act, 1988'? E & Kg * (\£;\Q\_,L_"(='.,\~.
»»a (3) Whether the prosecution has accused No.1 by misusing his officiai;--~p0sitio'1{ 0 i.
had obtained pecuniary of 0' Rs. 15,000 / ~ from PW'? coniniittedl J offence under section >1':'3(1:}(d)'tii),:>.pLiI1i.Si}.E1Eié~_:~.,/.. under section of tithe of M Corruption Act, _ (4) Vifhether the irlarried %.j_t1fiai'--.Jf.id'g,e has properly appreciated eyidenced reco1"d_?..
(5) 'judgment calls for 1' int.-ei'feren'ce?'§.f;. . :
7., , Before acirertingdddddto appreciation of evidence adduced ' ijrosecutiondVvddirikitnesses and findings recorded by the trialvidgiudge, certain admitted facts estabiished from Aeydidencet' record, which have not been disputed by either parties are stated as fo11ows:--
PW7 Was the successful. bidder of shop No.14 in public auction held in the month of January 2000 and he had cawfi, 09 _ agreed to deposit a sum of Rs.4,25,000/- as se.o'arit3ui;:ie'posit and pay monthly rent of Rs.2,000/-. PW7 'iatas pay security deposit within 15 d-ay's'~from'_'the of -a.ue't--ion'.f On the other hand, PW? paid'b':'sVeei1_i:rAity Zdepiosfi, instalments as shown in reading. Vas.:he~réuI1d'er:-- '' V , 1 338977 03.022000' i'2;§~00.'00 QR, ._J 6:: ('3 330513 was .2 5 . Qaiaosir 'T (mm Ofid 2 3400:«7«.._V i=0.04.2.000,_ ._5»r90,;000.00 saga ,@&'}(j 3 34'10'0a.£'*-*?"..__ i'§0;5.i2000""y_ .1,':>.2,500.00 '*9' M' mg) 4,25,000.00
8. 'was, Vreiwgular in payment of rents. As per _proc1iiced..--.by PW'? marked as EX.P.8 to Ex.P.10, he ' paitifiiis.-.?.O,O00/W towards rent though he was due in a * . .s's'm Vst'-";0fs;.ss,000/- as on 28.07.2001. PW?' for the reasons host to him had not paid rents regularly to Town 2 s. it 'i1'v'§t1nieipa1ity at Sira.
9. it is clear from the evidence of PW6 (the then Assistant Operator in Town Municipality at Sira} that PW? was i :
.-,4 L-éék ° tn: 1;; _ of commission of aforestated offences by accused No.1. Even when accused No.2 was examined under section 313 Cr.P.C., he was not questioned about his of commission of aforestated offences by acc"u~--s'ed.A_l.'No.1.z learned trial Judge has proceeded' on assu:rn.ptionuVg_that accused 1 8: 2 have committed offences under' sectioris 13[1](d)[ii), punishable underisection '1.3_{2} fof "Act. in a way, the learned trialgudgellhaysltreated accused No.2, who was an attender on :accuse_'dVbN__o.1, who was the Chiei"Oiiicei'fi of at Sira.
11. '«Iii._notice"ifro'rri ,.th*e_meiridence, none of the prosecution witnesses .1 ha_sV"deposed that accused No.2 had concealed currency notes in his shirt pocket, knowing full well had accepted bribe amount from PW"/'.
Af3«VenV__vif assumed that accused No.1 had received bribe, AA noneof the prosecution witnesses has deposed that accused " «No.i2 knowing Eull well that accused No.1 had received bribe of Rs.7,5()()/~» had concealed the same in his shirt pocket to aid or abet commission of aforestated offences Virtually, A} (~$@\..p..[>)\_.44 ' i --12 there is no incriminating evidence against accused No'.j§Z."'[he Court below has ignored to frame specific""'.c:harged' accused No.2. In the circumstances, 'is do gfind any'. i reasons to interfere with the acquittaioi' d'
12. Now adverting to evidvence accused No.1, I find that proVs'ecution"has.: on' evidence given by PW}, PW?' & Pwta. by PW2 to PW-4 relates to of Lokayukta to trap the been seriously controverted by given by PW5 is also not in diSpu£ek_%kS PW6 has given evidence relating to;unauthorisedconstruction raised by PW7 and demolition A at the instance of accused No. 1.
I he iv~T}'atvVeV'thAe-relevant time, PW8--Jagadish Jois, was working Secretary in the Department of Urban AA Deveiotpment. PW8 has deposed about sanction accorded by " in the name and by order of the Governor of Karnataka, to prosecute accused No.1. PW8 has been cross--eXamined I 5,/x-..g9~v t ---~ i A ;g'\ S --13 regarding procedure to be followed for accordingsariction to prosecute accused No.1. 1 do not find any"'i.nfirjriiity sanction order. PW8 has de}iiose'd'«t_h'at had"--:Vpla'ced7. relevant records before the couVncei"--ne'd if verification of records accorded prosecute accused No. 1. Thereafter, }?W"lssuedsancAti§on order by order and in the name ltarnataka.
14. as witnesses in the raiding " d
15. hi had accorded sanction to prosecute. o ; é E the discu_ssion made supra. I have held that there is ' {I10 mate'1'i.alv worth of consideration against accused no.2, ".feVen'vtlienVf=l5W10 has deposed that on consideration of redlepvazgthvrecords, he was satisfied that there is prima facie if 'lease against accused No.2 and accorded sanction to prosecute accused No.2 for offences under sections 7 and 13{1](d}(ii], punishable under section 13(2) of the Act, which I\w7*<9G'/"1"-*"d7u , 15 i, at Sira. On the said application, accused No. an endorsement, directing PW? to produce stamp papers to execute the agreement of leas.e."._From_.Vthe. contents of Ex.P.13, I find, PW7 had,comrnit.te'd.zdefauljtin rents. PW? was not even to. 'rent of Rs.2,000/-- per month..,_&'PW'7'l"was'jnotapayingvrents regularly. As already stated, of Rs.16,000/--
towards of PW?' has admitted that he papers for execution of the paidflrents regularly. PW? has not deposed "that had told PW7 to pay illegal gratificatiuon.,_:vofi.i{s.lF,$d0.0/-- on 21.06.2001. Therefore, it is , qIl;£ar:»¢hat,ppwfwas aware of defaults committed by him. ~,.al_';:3o aware that he should have produced stamp papers for the execution of agreement of lease. In the circumstances, a reasonable doubt would arise to Whether PW7 had reasonable belief to seek official favour from accused No.1, so also /reasonable doubt would K'//.. 1: I N, R\,~£., A 16 arise as to whether accused No.1 had any ofi;i.cilal discharge in favour of PW7.
21. The prosecution in [V order',to._.proyefj; acceptance of bribe by accused No.'1._lhas_"'.= on the evidence of PW1, PW?' PWI2'. * he
22. PW1~D.RamadaAsap:pa. party led by PW12 APW1: accompany PW7 to observe accused No.1 8:
1' accused No.1: PW1 was standing 'near after meeting accused No.1, saluted accused-1310.1-; accu.sed No.1 asked PW'? whether he arrearslofrent; PW? replied that he had paid rents 'ap1l_1"ci s'pho:we(:E~..afeceipt; thereafter, accused No.1 questioned [probably referring to bribe amount}; accused No.1"tol1d PW'? to pay the same later; PW'? insisted that he brought bribe amount and he would pay the same lljforthwith; accused No.1 told PW? to keep the bribe amount beneath the tray lying on his table: PW7 kept bribe amount
---- 1'7 beneath the tray; accused No.1 called accused No.2, took the bribe amount and handed over the same to accused._pNo.2 and asked him to keep the amount with him; kept tainted currency notes in his shirt :Vt:he.reafteru, PW7 came out of the chamber ofghaccuised 'Npo.* pre-- ' determined signal to PW12_.b_y remoifing his:.c.ap:' other members of raiding rushe'd_V_t'oa jhtfheflfofflilce, held accused no.2, removed' tainted currency notes from shirt pocket of accused No.2; ll 81 2 were dipped in two separateppbowls'containing sodium carbonate solution and resultant .Vsol.jutio'1i.s'."turned into pink colour and the same wasdcoillected dindtswo separate bottles and they were V' ._ seal'eci:~.the..shirt 'packet of accused No.2 was also dipped into sodium carbonate solution; the resultant 'sol'ut1ovn.'tté:3r;ied into pink colour; the same was collected in a .{5fficer collected necessary documents and co lfornialities of trap. (U. separate bottle and the bottle was sealed; the Investigating } leted other c.(;;t.&,, , --18 During cross-eXarnination, PW1 has adrnitted_..__that he was standing near the door in the chamber of accus:e'd.syN.o.1, therefore, PW} was not able to overhear coni*ersation;.t'l1at. took place between accused No. 1_a~nd_PWZ7 has . his ignorance to a specific sugges'tion_"th'at accused l'~I'fo~..1Vl'}v:as unable to execute the agreerne-nut of lease .forl..no;A1<_«p.i9.y:i1ent of up--to--date rent and non--prodiicti_on oi" requisite stamp papers by PW7. PWl has_de.posed"that'faccused No.1 did not question PW7 whether'h.e:'hadr_i:;rought"bribe amount. PW1 has sadt:m§¢;:i tainted currency notes beneath: the accused No.1 did not touch t11e_sarne';'«..PW1shasadrnitted that door of the chamber of .No.1upartia11y closed; by standing near the ' ;.Vd'oop1f;=PW not able to notice as to what had transpired "1§etwe¢ir1*"é:¢¢¥:1é.ed No.1 3: PW7. if z I find evidence of PW1 is not positive regarding .. if demand and acceptance of bribe amount by accused No. 1. W19 W
23. As per evidence of PW}, it is not clear as to had transpired between accused No.1 and PW? aftei'*--PW7_'__ent.ered the chamber of accused No.1. Contrary' deposed that after PW} & PW'? einteted §Fewr:'AREu11i.cipa1§t3f}at 1 Sira, when they were entering thechamberp of .accused.No.'1., one of the attenders sco1ded"s«th'em and._the3t-3ret:;;rhed back. Again, PW'? enteredflze chafhbeif"accused"'NoV.1 at 4 p.m. Here I pause for a to PW'? has not deposed whether_- PW? gone' out of Office of Town Murdcipalitgtyvhenthe"attendetV'sco1ded them and when PW}. entered the c13au:betV'e.fjaccused No.1, PW? has not deposed tha'r_PW1"u11ad'accothpanied PW'? for the second time to the cthaniberof accused No.1. PW'? has deposed at 4 p.m., he met Viacpcused 1' No.1 in his chamber and requested accused No.1 Vtotteziecute the agreement of lease; accused No.1 questioned PW'? if he has brought money; PW'? offered a sum 1' , 'Rs.7,5G0/--; accused No.1 toid PW'? to pay the same in his house; PW'? insisted that he would pay money (bribe) forthwith: accused No.1 told PW'? to keep money beneath ,\. ..L...w 1 .. 20 _ the tray of his table; PW7 kept the money;v"'benea'th _._:lt1.-ay; accused No.1 called accused No.2; .re:n'ov.ed".,_ tainted currency notes from tray:
over the same to accused No.2 tokeep the tls;m1Ve in pocket; thereafter, PW? ofnlaccused No.1 and gave a pre:--deter_rninedl to thereafter, PW12 and other merribers rushed to the chamber of accused No.2 was present iiri that accused No.2 was in larnount; accused No.2 was apprehended currency notes were recovered from poc'ket'- accused No.2; PW12 conducted A j:).lie15s,'ol.pi'1thalein"test by dipping the fingers of both hands of all in two separate bowls containing sodium 2' carbon.at'e_. solution and the resultant wash turned into pink colour'; shirt pocket of accused No.2 was also dipped in a ll . _ho_wl containing sodium carbonate solution and the resultant wash turned into pink colour; the resultant wash was separately collected in bottles and they were sealed. E I N' '/\_V .-__,/95 \.'
-- 21 During cross--examination, PW? has he had not paid security deposit on time security deposit in several instalments, 7. that on 21.06.2001 when he hadfxm__e:tA--A_accusediNe. 1, No.1 told PW? that he was 0-0 towards arrears of rents. PgW'7"de_niedf suggestion when he offered bribe amount' accused No.1 called accused: tdollect the money and pay the same' ».Co~!"le'e_tor_ towards arrears of rent paya'b'leV"b'y deposed that he had not paid up- to-date rents not furnished necessary stamp papers for theggexecution of agreement of lease. PW? has dferiiedg s1.1ggestion--------about unauthorised construction raised 0 "demolition of the same at the instance of .0 accused' which in fact has been categorically admitted by ewe. V PW12--H.S.Manjunath. the Investigating Officer has Vfdeposed; after raiding party reached Sira, the jeep was stopped at a distance from the office of Town Municipality; E , ?'\_}'-, £3-'5{."-""513-.., --28 1 interfere with the impugned judgment. answered accordingly.
29. In the result, the appeal is *