Karnataka High Court
Shashikala D/O Shivayogappa Wali vs The State Of Karnataka on 18 November, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.A.NO.2575/2011
BETWEEN :
SMT.SHASIKALA
D/O SHIVAYOGAPPA WALI,
AGE : 61 YEARS,
OCC: RETD. ASST. DIRECTOR,
WOMEN AND CHILD WELFARE DEPARTMENT,
R/O HAVERI.
... APPELLANT
(BY SRI NEELENDRA D.GUNDE, AMICUS CURIAE)
AND :
THE STATE OF KARNATAKA,
BY THE LOKAYUKTA POLICE,
HAVERI.
... RESPONDENT
(BY SRI G.I.GACHCHINAMATH, SPL.P.P.)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CRIMINAL PROCEDURE CODE, PRAYING THIS COURT TO SET
ASIDE THE JUDGMENT AND ORDER DATED 03.02.2011 PASSED
BY THE HON'BLE SPECIAL JUDGE, HAVERI, IN SPL.(LOK)
C.NO.3/2004 AND TO ACQUIT THE APPELLANT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
: JUDGMENT :
The appellant who is arrayed as accused in Spl.(Lok).C.No.3/2004 is before this Court seeking to quash the impugned judgment of conviction and order of sentence dated 03.02.2011, wherein he is convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1000/-, in default to pay fine, she shall undergo simple imprisonment for three months for the offence under Section 7 of Prevention of Corruption Act, 1961 ("the Act" for short) and to undergo simple imprisonment for two years and to pay a fine of Rs.2,000/-, in default to pay fine to undergo simple imprisonment for six months for the offence under Section 13 (1)(d) read with Section 13(2) of the Corruption Act.
2. Brief facts of the case are that the informant-PW.5 lodged the first information with Lokayukta Police against the accused alleging 3 commission of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. It is stated by the informant that the accused was working as Assistant Director, Women and Child Welfare Department, Haveri. She demanded and accepted the illegal gratification of Rs.1,500/- for showing the official favour, as the application of the informant relating to the tender for supply of food-grains to various Anganawadis in the district was pending in the Department. The tainted money was recovered from the purse of the accused under the trap mahazar and the charge sheet was came to be filed for the above said offences. The accused denied the charges leveled against her for the above said offences and claims to be tried.
3. The prosecution examined 15 witnesses as PWs.1 to 15, got marked Exs.P.1 to P.42 and identified MOs.1 to 17 in support of its 4 contention. The accused had denied all the incriminating materials available on record in her statement recorded under Section 313 of Cr.P.C. But she has not chosen to lead evidence in support of her defence. However, during cross-examination of the witnesses, Exs.D.1 to D.3 were got marked. Accused produced some of the documents after denying incriminating materials available on record in her statement. The Trial Court after taking into consideration the materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
4. Being aggrieved by the said judgment of conviction passed by the trial Court, the accused is before this Court seeking to allow the appeal and acquit the accused in the interest of justice.
5. Heard learned amicus curiae Sri.Neelendra D.Gunde, for the appellant and 5 learned counsel Sri.G.I.Gachainamath, for the respondent.
6. Learned amicus curiae submitted that the prosecution has not proved the demand and acceptance of illegal gratification and also not proved the fact that the work was pending with the accused, to show any official favour. In fact no work was pending with the accused and even the file relating to the accused was not with the accused. PW6, who is said to be the independent witness, has not supported the case of the prosecution. Admittedly, the shadow witness, who is examined as PW7 had not accompanied the informant, when he met the accused and said to have tendered the bribe amount. All the witnesses specifically stated that, the shadow witness was in the veranda and had not witnessed either the demand or acceptance. Under such circumstance, the evidence of PW7, who is shadow witness and PW8, who is the 6 pancha-2, are not at all helpful to the case made out by the prosecution. Even though, the investigating officer stated that Exs.P37 to 40 are the documents relating to the informant and were seized from the custody of the accused, the said documents are not relating to informant in any manner. The accused had not given Ex.P12 voluntarily. But, the same was obtained by force. Therefore, the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt.
7. Learned counsel further contended that to seek conviction of the accused, the demand and acceptance are to be proved by the prosecution, as the same are sine-qua-non for convicting the accused. But in the present case, prosecution is not successful in proving any of these facts. The uncorroborated version of PW5 cannot be the sole basis for convicting the accused. Learned counsel further submitted that 7 the cross-examination of PW5 discloses that the conduct of the informant and his uncorroborated version, cannot be believed and conviction cannot be based on his evidence. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court in the interest of justice.
8. Per contra, learned counsel representing the respondent, supporting the impugned judgment of conviction and order of sentence contended that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The PW5 has fully supported the case of prosecution. Prosecution has produced relevant documents to prove its contentions. The trial Court after considering all these materials on record, proceeded to convict the accused by assigning cogent and valid reasons. The accused has not denied acceptance 8 of the illegal gratification. She tendered explanation as per Ex.P12. The recovery of the tainted money is not at all disputed. The FSL report supported the case of prosecution that hand wash of accused tested positive for the presence of phenolphthalein. Under such circumstances, the presumption under Section 20 of Prevention of Corruption Act arises and burden lies on the accused to rebut the same. The accused has not led any evidence to rebut the presumption of law. Therefore, the trial Court rightly convicted the accused. There are absolutely no reasons to interfere with the impugned judgment of conviction or order of sentence passed by the trial Court. Hence, he prays for dismissal of the appeal in the interest of justice.
9. Perused the materials on record.
10. The point that would arise for consideration of this Court is as under: 9
"Whether the impugned judgment or conviction and order of sentence order dated 03.02.2011 passed in Spl.(Lok)C.No.3/2004 on the file of the Special Court, Haveri against the appellant, is liable to be set aside?"
11. My answer to the above is in the affirmative for the following:
REASONS
12. It is the specific contention of the prosecution that the accused was working as Assistant Director in the Department of Women and Child Welfare, Haveri, demanded and accepted illegal gratification of Rs.1,500/- for showing the official favour in favour of the informant, as the bill for Rs.6,832/-, for having supplied food-grains to various Anganawadi centers was pending in the Department. She being the public servant, initially demanded Rs.5,000/- on 16.7.2002 but, after bargaining she agreed to receive Rs.3,000/- on 19.7.2002. 10 On 20.7.2002 she again demanded and accepted the illegal gratification of Rs.1,500/- and thereby committed misconduct for the offence punishable under Sections 7, 13(1) (d) read with Sections 13(2) of the Act.
13. To prove this contention, prosecution examined in all 15 witnesses. PW1 to 4 are the formal witnesses and PW5 is the informant. Ex.P1 is the first information lodged by the informant on 20.07.2002 stating regarding the demand for illegal gratification made by the accused to show the official favour. It is stated that the complainant was transporting food grains for various Anganawadi Centers in his Goods Tempo bearing Reg.No.25/5385 and a tender was called by the Department Haveri, to entrust the work of supply of the food grains and the informant was the successful bidder for the year 2002-2003. There were in all 138 Anganawadi Centers to which he was required to 11 supply the food grains. On 29.4.2002, a letter from the office of the accused was sent to the informant asking him to come and meet the CEO of Zilla Panchayat, Haveri. When he went there for collecting the order regarding finalizing the tender, accused demanded Rs.10,000/- and insisted for the same by saying that she has to pay a portion of the amount to her higher officers in Zilla Panchayat. She also stated that she can finalize the tender in favour of another bidder and therefore, the informant promised to come back within a week. As the accused agreed to receive Rs.8,000/-, the informant went to her office and paid Rs.8,000/-. She asked the informant to collect the tender order from the Office of CDPO at Savanuru. But, till 28.5.2002, the said order was not received in the office of Savanuru. In the meantime, since the informant had transported food grains to 138 Anganawadi Centers, he submitted a bill for Rs.6,832/- with CDPO, Savanuru on 10.7.2002. On 15.7.2002 12 when he again met the CDPO, he informed that his bill was forwarded to District Director and he was called to Haveri. On 16.7.2002 he met the accused and requested for sanctioning of the bill. The accused abused him stating that without paying any amount, his work will not be done. She demanded Rs.5,000/- threatening to return back the file with an endorsement as not approved and to cancel the tender which was finalized in his favour. On 19.7.2002 he again met the accused and when he bargained she agreed to receive Rs.3,000/-. Informant stated that he will come on the next day with Rs.1,500/- and requested to do the official favour. Since, he was not willing to pay the illegal gratification to the accused. He filed first information requesting the ACB Police to register the case and to initiate legal action against the accused.
13
14. The informant who is examined as PW5 deposed that the accused had stated him that the amount of Rs.8,000/- paid by him is for finalizing the tender and again demanded Rs.8,000/- for clearing the bill that was pending. After bargaining, she agreed to receive Rs.1,500/- and therefore, he lodged the first information. Witness also stated about the entrustment made under the panchanama in the presence of two panchas and stated that he along with his friend Khadri and the shadow witness went to the office of accused at 4.50 p.m. Witness specifically stated that he along with his friend Khadri went inside the chamber while the shadow witness was standing outside and the accused again demanded and accepted Rs.1,500/-, counted the same with both the hands and kept in her purse. The informant came out of the chamber and gave signal to Lokayukta police, who came to the spot and procedure as per trap panchanama was 14 conducted, the tainted money accepted by the accused was recovered from her purse in the presence of Panchas.
15. PW6 is Mr.Khadri, who is the friend of informant. The informant specifically stated that he went inside the chamber of accused along with this witness while the shadow witness was standing outside. But this witness has not supported the case of the prosecution and turned hostile. Even during cross-examination by the learned Public Prosecutor, the witness has not supported the case of the prosecution and nothing has been elicited from him to disbelieve his version.
16. PW7 is the shadow witness. She was working as FDC in Minor Irrigation Department, Dharwad. Witness stated in detail regarding the entrustment panchanama and the procedures followed. Witness stated that the informant along with his friend went inside the chamber of 15 the accused while she was standing outside. After a while, the informant came out of the chamber and stated that accused had accepted the bribe amount. He also gave signal to Lokayukta police and therefore, tainted money was recovered from the custody of the accused. Witness also spoke about the trap panchanama drawn at the spot and the explanation submitted by the accused.
17. PW8 is the second pancha. He also spoke about the entrustment panchanama, recovery of the amount from the accused.
18. Ex.P6 is the trap panchanama drawn at the spot. As per this document, the informant gave signal to the investigating officer at about 4.30p.m and immediately, investigating officer along with 2 n d pancha and other officials went to the chamber of the accused. The informant stated that the accused received Rs.1,500/-. The hand wash of the accused was taken and the 16 tainted money was recovered from the accused. It is stated in the panchanama that the shadow witness was standing out side the chamber, in the hall where other officials were working. It was only the informant and Khadri, who went inside the chamber, where the accused said to have demanded and accepted illegal gratification. No other witnesses have spoken about the demand and acceptance of the illegal gratification. It is only the informant, who spoke about the demand and acceptance of the gratification by the accused. PW7 even though the shadow witness has specifically stated in his evidence that when the informant along with his friend entered the chamber of the accused he was standing outside and he is not aware as to what had transpired inside the chamber. Since, PW6-friend of the informant, who said to have accompanied him has not supported the case of the prosecution. Therefore, the evidence of the informant alone is their regarding demand and 17 acceptance of the illegal gratification. Now the question arises as to whether it could be held that prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
19. The Hon'ble Supreme Court in the case of V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga 1 referred to various decisions on the subject rendered by it from time to time and reiterated the position of law that proof of demand is a sine qua non for seeking conviction of the accused. It is also reiterated that mere recovery of the tainted money is not sufficient to draw the presumption under Section 20 of the Act.
20. The Hon'ble Apex Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another 2 held as under:
1
AIR 2016 SC 2045 2 (2015) 10 SCC 152 18 "20. This Court in A.Subair v. State of Kerala3, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p.593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
21. In State of Kerala v. C.P.Rao4, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj5 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence 3 (2009) 6 SCC 587 4 (2011) 6 SCC 450 5 (2014) 13 SCC 55 19 of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery 20 of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
21. These decisions make the position of law very clear that the prosecution is required to prove the demand made by the accused for illegal gratification so also the acceptance on his part.
22. To constitute an offence under Section 7 of the P.C. Act, demand for illegal gratification is sine-quo-non. Unless the prosecution is successful in proving the factum of demand and acceptance, it cannot be said that the charge leveled against the accused is proved. Moreover unless there is proof regarding the demand and acceptance, the presumption under Section 20 of the P.C.Act cannot be invoked.
23. When it is the settled position of law that proof of demand is sine-quo-non to seek conviction of the accused for the offence 21 punishable under Section 7 and 13(1) (d) of the Act, and on the facts and circumstance of the present case, the version of the informant, who is examined as PW5 is placed on record to prove such demand and acceptance. His evidence is to be considered with great care and caution.
24. During cross-examination, the witness stated that finalizing the tender in his name for the year 2002-03 was informed to him by the officials of Zilla Panchayat. However he denied the suggestion that the said order finalizing the tender in his favour was forwarded to him. The witness denied the suggestion that the finalizing the tender would be done in the office of Zilla Panchayat, Haveri and no work was pending with the accused relating to the said tender. It is suggested to the witness that the accused was threatened and her explanation was obtained to suit his purpose. It is also suggested that in order to falsely implicate the accused to forcibly 22 thrust the currency notes to the accused and manage to trap her.
25. The prosecution in order to prove the offence in question against the accused it has to show that the official work was in fact pending with the accused to show the official favour for the purpose of demanding illegal gratification. It is the contention of the prosecution that the file relating to the accused for payment of the bill amount for having transported food grains to various Anganawadi Centers in the district was with the accused. It is stated that Exs.P37 to 40 is the file relating to the informant and the same was seized by the investigating officer. It is also pertinent to note that the prosecution is relying on the Ex.P25 said to be copy of the bill pertaining to the informant which was required to be attended by the accused. If Ex.P25 is considered in the light of Exs.P37 to 40, this file definitely not concerning the informant. Under 23 the Ex.P37, the bill is No.3/02-03 for Rs.71,217/- and Exs.P38 and 39 relating to bill No.6/02-03 for Rs.7,535/- and Ex.P40 is the proceedings of CEO, Zilla Panchayat, Haveri rearding calling for the tender for transportation of food grains from warehouse. On perusal of these documents definitely Exs.P37 to 39 are not relating to the informant.
26. As per Ex.P40, the bill submitted by the informant to the Zilla Panchayat, Haveri is accepted and a decision was taken to issue an order in favour of the informant to transport the food grains from warehouse to 138 Anganawadi Centers at Rs.49.50/- per center. This resolution was passed in the district level committee on 6.5.2002 which was accepted by the Zilla Panchayat and the order was passed on 18.5.2002 which is much prior to demand made by the accused for illegal gratification. Acceptance of the tender was the job of Zilla 24 Panchayat and accordingly, the order as per Ex.P40 was passed about 2 months earlier to so called demand and acceptance of illegal gratification.
27. Another contention taken by the prosecution is that the illegal gratification was demanded by the accused to release the amount of Rs.6,832/- submitted by the informant for having supply food grains to various Anganawadi Centers. The bill amount itself is Rs.6,832/-. But the contention of the prosecution that the accused demanded Rs.6,000/- to release amount under the bill is highly improbable. Moreover, as per Ex.D1 produced by the accused the bill Nos.7, 8 and 9/02-03 are for Rs.6,637/-, Rs.26,600/- and Rs.6,831/- respectively which were forwarded by the Child Development Planning Officer, ICDS, Savanuru for counter signature and the same was attended by the accused on 12.7.2002 which is about 8 days 25 earlier to registration of the FIR. Even as per the Ex.D2, the D.C bill that was submitted by the informant is with bill No.9/02-03 for an amount of Rs.6,831/-. It is further supported by Ex.D3. From these documents it cannot be said that the bill in question was detained by the accused either for counter signature or for releasing the amount.
28. It is pertinent to note that Ex.D3 is the letter by Child Development Planning Officer, ICDS, Savanuru dated 20.7.2002 resubmitting the bill No.7/02-03 and 9/02-03 by rectifying the objections and requesting for counter signature. On the very same day on 20.7.2002 the first information was came to be filed. As per Ex.D2 dated 16.7.2002, the D.C bill No.9/02-03 was returned to the CDPO by raising specific objections. There is absolutely no explanation as to how it could not be construed that the work was pending with the accused as 26 on the date of demand and acceptance. When the prosecution fails to prove pendency of the work with the accused and when it fails to corroborate the evidence of PW5 regarding demand and acceptance of the illegal gratification, it may not be proper for accepting such uncorroborated evidence to convict the accused.
29. When the investigating officer arranged PW7, as the shadow witness and instructed her to accompany the informant while meeting the accused, there was absolutely no reason as to why the shadow witness was left out and informant along with PW6, entered the chamber of the accused to tender the tainted money on her request. It may not be safe to accept the un-corroboration version of PW5, when even the documents produced by the prosecution do not support his contention. 27
30. When a serious doubt arises on the case made out by the prosecution, the benefit of doubt would always enure to the accused. As discussed above, it is not safe to convict the accused on the uncorroborated version of the informant. The prosecution failed to place convincing materials to form an opinion that it is successful in proving the guilt of the accused beyond reasonable doubt. When the prosecution is not successful in proving demand and acceptance of illegal gratification by the accused, the presumption under Section 20 of PC Act cannot be invoked to shift the burden on the accused to rebut the same. The materials that are placed before the Court by the prosecution are only sufficient to probablies its contention regarding demand and acceptance of the illegal gratification. But it is not sufficient to convict the accused. The standard of proof to seek conviction is greater on the prosecution as it has to prove the guilt of the accused beyond 28 reasonable doubt. Therefore, I am of the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt and the benefit of doubt would be given to the accused.
31. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has proceeded to convict the accused solely on the evidence of PW5-informant, which remained uncorroborated. The trial Court has also not taken into consideration the fact that the documents that are placed before the Court do not support the contention of the prosecution that the official work was pending with the accused to show the official favour. Therefore, I deem it proper to set-side the impugned judgment of conviction and order of sentence passed against the accused. Accordingly, I answer above point in 29 the affirmative and proceeded to pass the following:
ORDER The criminal appeal is allowed.
The impugned judgment of conviction and order of sentence dated 03.02.2011 passed in Spl. (Lok) C.No.3/2004 by the learned Special Judge, Haveri is set-aside. Consequently, accused is acquitted for the above said offence.
Send back trial Court records along with copy of the judgment.
Sd/-
JUDGE EM/AM