Supreme Court - Daily Orders
State Of Karnataka Tr.Lokayukt Police vs Srinivas on 17 December, 2014
Bench: Sudhansu Jyoti Mukhopadhaya, N.V. Ramana
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2029 OF 2012
STATE OF KARNATAKA TR.LOKAYUKT POLICE ....APPELLANT
VERSUS
SRINIVAS ....RESPONDENT
O R D E R
This appeal has been preferred by the State of Karnataka against the order of acquittal dated 1st December, 2010 passed by the High Court of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No. 683 of 2004. By the impugned judgment and order, the High Court acquitted the accused-respondent and set aside the order of conviction and sentence passed by the Special Judge, Gadag, for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to `P.C. Act') and under Section 13(1)(d) read with Section 13(2) of the P.C.Act.
The case of prosecution is that the accused was working as a Block Education Officer at Shirahatti. While so working, complainant Prakash Pashupatihal is said to have met the accused, demanded for the payment of the money for which his father was entitled to. It is alleged that accused demanded a sum of Rs.5,000/- as bribe and thereafter, it was lowered after talk between Signature Not Verified parties to Rs.2,000/-. As the complainant was not Digitally signed by Rajni Mukhi Date: 2015.01.15 16:21:07 IST Reason: 1 interested in paying the money to the public servant for getting the Government job done, the complainant filed complaint on 16 th April, 1997 at the office of Lokayukta Police (Ex.P-4).
Further, the case of the prosecution is that after receiving the complaint, the Investigating Officer secured the presence of the Panchas P.Ws 1 & 2 and entrusted the intended bribe money to the complainant while drawing a panchnama as per Ex.P.3. While entrusting the money, the complainant and the Panchas were informed about the chemical reaction of phenolphthalein to sodium carbonate solution and directed the complainant to pay the money to the accused only on demand. The Panch witness was directed to accompany the complainant, watch the happenings, thereafter report back.
Thereafter, the entire trap party went to the office of the AGO and directed the complainant and the Panch witness to talk to the AGO. Thereafter, he received the signal as suggested with the handkerchief. He entered the office of the AGO, introduced himself to the AGO with the identity card; thereafter, washed the hands of the AGO with sodium carbonate solution; collected the solution which turned into pink; thereafter, enquired with the accused with regard to the bribe money. Accused produced the bribe money and it was the very same money that was entrusted by him while drawing entrustment mahazar.
The case of the prosecution is that the accused has received the sum of Rs.2,000/- to give the cheque payable to the mother of the complainant. So, in that view of the matter, the prosecution filed the charge-sheet for the offences under Section 13(1)(d) and 13(2) of the P.C. Act.
2On behalf of the prosecution, six witnesses were examined. Exs.P.1 to P.24 were marked. M.Os 1 to 9 were also marked. The Sessions Judge (Special) on appreciation of evidence by Judgment dated 30th April, 2004 convicted the accused-respondent for the offence punishable under Section 7 of the P.C. Act and under section 13(1)(d) read with Section 13(2)of the P.C. Act. On challenge, the High Court by impugned order passed in the appeal preferred by the accused-respondent, on appreciation of evidence doubted the case of prosecution and acquitted the respondent.
The learned counsel appearing on behalf of the appellant-State submitted that when there is believable evidence regarding the demand, receipt of bribe amount by the accused and recovery of the same from his custody, it was not open to the High Court to acquit the appellant on a third ground that the cheque was not issued or given to the complainant or to the person in whose name it was drawn and it was undersigned one till that time. Further, according to learned counsel for the appellant, the High Court failed to appreciate the importance of Section 20 of the P.C.Act, in other words, presumption has to be raised in favour of the prosecution, where there is clear evidence to show the proof of fact of recovery of bribe amount of Rs.2,000/- from the possession of accused-respondent. It is submitted that the material evidence has not been considered by the High Court.
The learned counsel appearing on behalf of the accused-respondent referred to the Statement of PW.1, PW.3 and PW.4 to show the material contradiction suggesting that a frivolous trap case was made out against the respondent. It is contended that if two views are possible, the High Court rightly acquitted the accused-respondent.
P.W.1 is one of the witnesses who was there throughout the raid. He was the employee of H.D.M.C. Hubli. According to him 3 higher Authorities has received a letter from Lokayukta, Dharwad and pursuant to the same he was asked to meet Dharwad Lokayukta Police at 5.00 P.M. He alongwith police who has come to his office went to Lokayukta office and he was asked to come on the next day i.e. 16th April, 1997 at 7.30 A.M. He and another witness was summoned by Lokayukta Police Inspector and they got introduced the complainant. He was informed that Rs.36,000/- was due to the father of the complainant and the complainant had asked the accused to issue the cheque for the said amount for which he has demanded Rs.5,000/- as illegal gratification and it was later reduced to Rs.2,000/-. The complainant was not willing to pay the said amount and in that regard he was asked to cooperate. He stated that Prakash Pashupatihal had given Rs.2,000/- to the hands of the Police Inspector. The Police Inspector applied white powder on it and same was given to him for counting. There were Rs.2,000/- and he and other pancha were asked to note down the note numbers and he has recorded the numbers of the said notes. Solution was prepared in two bowls and his hands were asked to be washed which turned pink colour. Later on, he got himself washed his hands. Said solution was put in bottles towards sample and he had signed the chits and same were affixed on the said bottles which were marked as M.Os 1 to 4. Said notes were returned to the complainant with a direction to give the same to the accused when demanded. Further, he says that in Dharwad Lokayukta Office a Mahazar was drawn as per Ex.P.3 for which he has signed as per Ex.P.3(a) and the Police Inspector has also signed.
Subsequently, the complainant, police inspetor and others came to Shirahatti at 11.00 A.M. He was asked to be with the complainant by the police inspector. It was directed that when the said amount would be paid to the accused-respondent he should come out and that the complainant should clean his face with the handkerchief as a sign so that the police inspector would come, before that they may request the accused to issue cheque. If he does so, then his work would be over. Inspite of it, if the 4 accused demands money then the complainant should pay the money to the accused. P.W.1 specifically stated that he and the complainant went to the office at 11.45 a.m. In the office of B.E.O. accused was sitting on his chair. The complainant asked him to issue cheque for the amount due to his father. Accused asked him to pay the amount as demanded earlier. This witness has heard the accused saying so. The complainant paid Rs.2,000/- to the accused. Accused received the said amount and kept the same on the right side drawer of the table. Later on, he and the complainant came out of the room. The complainant cleaned his face with handkerchief thereby giving signal to the police inspector. They along with panch and staff came to the chamber of the accused. The staff of the police inspector caught hold the hands of the accused. Accused was telling that he has not received any amount. The complainant told him that he has received the said amount and kept the same in the drawer. It was there in the right side drawer of the table. Hands of the accused were got washed in the solution. Immediately, it was turned pink. Earlier solution was white in colour. The pink colour solution was taken as sample in bottles. In his cross examination P.W.1 stated that he has not gone to the Chamber of the accused at 11.A.M. It was further stated when they went to the chamber of the accused, accused had completed his examination work and he was sitting in his chair. On behalf of defence it was suggested that when they went to the office of the accused at 12.00 since he was not found in the chair, they themselves sat on the chair and that at about 1.00 P.M. when the accused came to the chamber police inspector shook the hands of the accused but the said suggestion was denied by the witness.
P.W.2 is another panch witness. He made similar statement like P.W.1. During the cross-examination it got elicited that pink colour which was due to wash of the hands of P.W.1 and pink colour found in M.O.6 after wash of the accused's hands were not of similar colour. Therefore, on behalf of the defence, it was 5 contended that the solution was quite different. But nevertheless the suggestion was not admitted by the witness though it was accepted that the colour due to the wash of the hand of P.W.1 was pink whereas the colour found in M.O.6 after wash of the accused's hands was light pink. It is for the said reason on behalf of the defence the suggestion was made that as the police officer shook hands with the accused, on wash of hand of the accused light pink colour was found.
P.W.3- Achut was working as a First Division Clerk in the office of the BEO, Shirahatti. In his cross examination he stated that in the year 1997 he was working with the accused in the said office. There was PUC examination being held between 12.4.1997 to 25.4.1997. The accused was asked to conduct the examination at Shirahatti and Belahhati which is about 20 K.M. from Shirahatti. The examination was conducted from Morning 9.00 A.M. to 12.00 P.M. The accused used to go in the Morning at 8.00 A.M. and used to return by 1.30 P.M. On 16th April, 1997 the Lokayukta Police had come to their office. He had informed that accused has gone for examination and asked them to wait. The police persons were present for about one hour till the accused returned. In his cross-examination he also accepted that the complainant and his mother both used to come and ask for the cheque to be given to them, but he stated that the accused had said that the cheque will be given only after obtaining an order from the Court.
The High Court noticed the contradiction in the Statements of the complainant P.W.4 and panch witness including P.W.1. P.W.4 stated that he contacted the accused; demanded for the cheque; accused received the money and thereafter, accused gave the cheque. Whereas the recovery mahazar states that after paying the said sum of Rs.2,000/- to the accused, the accused asked the complainant to wait outside the office and that he went out of the office. The High Court noticed the document filed and seized by the Investigating Officer-EX.P.20 i.e., a Xerox copy of the cheque 6 for Rs.35,293/-. The submission of Prosecutor before the High Court was that according to Section 7 of the Act, accused being a Government servant is not entitled for any other money except the legally receivable remuneration.
It was also contended that when Section 7 is attracted, automatically presumption under Section 20 is attracted. So far as the version of P.W.4 is concerned, he said that he paid the bribe and the accused received the money. It is also the case of the prosecution but it is the contrary to Ex.P.1. In Ex.P1, version is that the complainant was asked to wait for the cheque. There is a difference between receiving the cheque and asking to wait for the cheque. Statement of P.W.3 is that the accused has said that the cheque will be given only after an order obtained from the Court.
The High Court while noticing the statement made on behalf of the prosecution, observed that after taking entire thing granted, why the public prosecutor has not suggested about the mistake committed by the complainant, while giving the evidence remains unsubstantiated. The High Court was of the view that in such a situation, the evidence as brought on record by the witness, one-version is of completed transaction, the other version is of uncompleted transaction. The High Court also noticed that the Ex.P.9, which is a letter written by the accused a portion of which reads as follows:
“Sir, I have not demanded any money from Prakash Pasupathihal and I have not received any money from him. Mr. Prakash Pashupathihal has not given me any money. Sir, you have asked me to sign the cheque of late Shri Veerupakshappa Pashupathihal now itself. Sir, I have not seen his file and cheque for Rs.36,000. I shall study his file and put my signature on the cheque.” The suggestion made on behalf of the defence is that the 7 accused was pressurised to sign the cheque and, therefore, he had no other option but to address the letter to the police officials denying the demand of money with clear understanding that he had not even seen the file and only after study of the file, he will put signature on the cheque. The High Court observed that the aforesaid version was not in consonance with the case prepared by the Investigating Oficer and for the said reason, the High Court was of the opinion that there are two views which are possible and if the mistake of the public prosecutor can be ignored, Court has to give a conviction and on contrary, if the mistake is considered as serious looking to the nature of the offence, it has to lead to acquittal.
The learned counsel for the appellant made great emphasis on recovery of money from the drawer of the table of the accused. But such evidence cannot be sufficient to convict the accused. This Court in C.M. Girish Babu Versus CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 having noticed the earlier decision in Suraj Mal V. State (Delhi Admn) (1979) 4 SCC 725 observed and held as follows:
“This Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” While dealing with an appeal against conviction, the Court is entitled to go through the record and if needed, may appreciate the entire evidence. However, while choosing to interfere in an order of acquittal, the Court should find an absolute assurance of guilt on the basis of evidence on record and should not interfere merely when a different view is possible. In the present case, as 8 we have noticed that two different views are possible which is rightly held by the High Court and the High Court's finding is based on evidence and not perverse, no case is made out to interfere with the impugned judgment. In absence of any merit, appeal is dismissed.
..............................J. [SUDHANSU JYOTI MUKHOPADHAYA] ..............................J. [N.V. RAMANA] NEW DELHI;
DECEMBER 17, 2014
9
ITEM NO.101 COURT NO.4 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2029/2012
STATE OF KARNATAKA TR.LOKAYUKT POLICE Appellant(s)
VERSUS
SRINIVAS Respondent(s)
(with office report)
Date : 17/12/2014 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE N.V. RAMANA For Appellant(s) Ms. Anitha Shenoy,Adv.
For Respondent(s) Mr. Basava Prabhu S. Patil, Sr. Adv.
Mr. Chinmay Deshpande, Adv.
Mr. Anirudh Sanganeria, Adv.
Mr. Ankolekar Gurudatta,Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the Signed Order.
(Rajni Mukhi) (Suman Jain)
Sr. P.A. Court Master
(Signed Order is placed on the file)
10