Karnataka High Court
Thimmappa vs The State Of Karnataka on 10 August, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.9/2014
BETWEEN:
THIMMAPPA
S/O HANUMANTHAIAH
AGED ABOUT 35 YEARS
SECOND DIVISION ASSISTANT,
TALUK OFFICE, R/O VIDYA NAGAR
SIRA TALUK, TUMKUR - 572 137.
... APPELLANT
(BY SRI A H BHAGAVAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH LOKAYUKTHA POLICE
TUMKUR - 572 101.
... RESPONDENT
(BY SRI B S PRASAD SPECIAL P P)
***
THIS CRL.A. IS FILED UNDER S.374(2) OF Cr.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 07.12.2013
PASSED BY THE II ADDITIONAL DISTRICT AND S.J.,
TUMKUR IN SPECIAL CASE No.93/2009-CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7, 13(1)(d) READ WITH
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13(2) FO PREVENTION OF CORRUPTION ACT, 1988.
THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOS
OF 6 MONTHS AND FINE OF RS.5,000/-, IN DEFAULT
OF PAYMENT OF FINE, HE SHALL UNDERGO
RIGOROUS IMPRISONMENT FRO 3 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 7 READ
WITH 13(2) OF PREVENTION OF CORRUPTION ACT,
1988. THE APPELLANT/ACCUSED IS SENTENCED TO
SUFFER RIGOROUS IMPRISONMENT FOR A PERIOD
OF 2 YEARS AND FINE OF RS.5,000/-, IN DEFAULT OF
PAYMENT OF FINE, HE SHALL UNDERGO RIGOROUS
IMPRISONMENT FOR 3 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 13(1)(d) R/W 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988,
SUBSTANTIVE SENTENCES SHALL RUN
CONCURRENTLY AND THE DEFAULT SENTENCE
SHALL RUN SEPARATELY.
THIS CRL.A. COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is directed against the judgment passed by the learned Sessions Judge in Special Case No.93/2009 on 7.12.2013, wherein, the accused was found guilty for having committed the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Further, the accused therein has been sentenced to 3 undergo rigorous imprisonment for a period of six months and a fine of Rs.5,000/- in default of payment of fine, three months rigorous imprisonment for the offence punishable under Section 7 read with 13(2) of the Prevention of Corruption Act and accused is further sentenced to serve rigorous imprisonment for a period of two years and fine of Rs.5,000/- in default of payment of fine, three months rigorous imprisonment for the offence punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act and substantive sentences to run concurrently and the default sentence to run separately.
2. Accused has preferred the appeal challenging the conviction and sentenced imposed by the learned Sessions Judge.
3. Heard learned counsel for the appellant and learned Special Public Prosecutor for respondent and perused the records.
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4. The proceedings came to be initiated on a complaint said to have been filed by the complainant- Thimmanna, before the Lokayukta Police, Tumakuru, wherein the complaint filed by the complainant came to be marked as Ex.P2 during the trial. Thimmanna, complainant states that he is the resident of Hosabettinaballi, G.D. Halli Post, Bukapatna Hobli, Sira Taluk, Tumkuru District.
5. The substance of the complaint is, that the complainant was looking after two cows and there was a huge raining, lightening and thunderbolt. He tied the cows in the shed and came out. Because of thunderbolt and rain, a coconut tree fell down. When the complainant saw, the said two cows were dead and he was screaming and crying. Village people gathered and Member, Thimmegowda, arranged for mahahzar in the presence of panchayat members.
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6. He has purchased both the cows for Rs.22,000/-. The case was recommended to the Deputy Commissioner for compensation and finally, an amount of Rs.10,000/- was granted by way of compensation. In this connection, the accused on being approached by Thimmanna -the complainant, he told that he would arrange for release of Rs.10,000/- through cheque from the Tahasildar and in turn, complainant has to pay Rs.1,000/- by way of bribe.
7. Complainant expressed that it was not possible for him to pay Rs.1,000/- as he is a poor person. Even Thimmegowda,-Member requested, but the accused did not show concession and the complainant was directed to pay the said amount to the accused on 16.7.2008- Wednesday. The complainant states that he borrowed loan from Thimmegowda- Member. But he was not interested to pay the bribe, hence lodged the complaint against the accused. Case 6 came to be registered in Crime No.9/2008 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
8. According to complainant initially entrustment mahazar Ex.P3 was conducted in the office of the Lokayukta police at Tumakuru. The trap or recovery Mahazar Ex-P-4 was conducted in the office of the accused were he was caught red handed while receiving the amount of Rs.1,000/- after demanded it from the complainant.
9. The accused is a public servant within the meaning of Prevention of Corruption Act and working as Second Division Assistant(SDA) in the office of the Tahsildar. As such, under the provisions of Prevention of Corruption Act, it is incumbent on the part of the prosecuting agency to obtain sanction for prosecution from the competent authority, which invariably goes to 7 suggest that appointing authority who has the power of dismissing the public servant would be the one. In this connection, Sri. Srinivasa H.R., the then Deputy Commissioner of Tumkuru has granted sanction to prosecute the accused for the offences punishable under section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. However, sanction in this case is not seriously disputed.
10. On investigation, final report came to be filed against the accused for the said offences.
11. During the trial, as many as seven witnesses were examined as PWs 1 to 7, ten documents were marked as Exs.P1 to P10(b) and 19 material objects got marked as per MOs 1 to 10.
12. The witnesses who are examined include PW1- A.C.Renukaprasad, Tahsildar, Tumkur, PW2- D.S.Ramesh, Junior Engineer, PWD, who has drawn the 8 sketch of the place where the offence is said to have been taken place. PW3-Thimmanna is the complainant. PW4-K.S.Govindaraju, is the second witness who was present during the mahazar. PW5-H.R.Srinivasa, is the then Deputy Commissioner. PW6-Ashwathanarayana, Police Inspector and PW7-B.Umashankar is the Investigating Officer.
13. The learned trial Judge, after hearing the parties and perusing the oral and documentary evidence, has convicted the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the prevention of corruption Act and sentenced him to undergo the sentences as mentioned above.
14. Learned counsel for the appellant Sri. A.H.Bhagawan, would submit that it is a case of no evidence and the learned trial Judge has ignored the valid materials which ipso facto did not establish the case of the prosecution despite accused came to be 9 convicted. He would further submit that the complainant never supported the prosecution case and he was declared hostile. So far as other witnesses, one Venkatesh was dead and not available to tender his evidence and there was no version regarding any witness of the offence more particularly, of the demand of bribe and its acceptance by the accused.
15. Learned counsel would further submit that unless the element of demand is established, and the offence under section 13(2) by itself does not form bribe and mere recovery is not a conclusive proof of receipt of bribe.
16. The learned Special Public Prosecutor Sri. B.S.Prasad for Lokayukta Police would submit that the demand is established, illegal gratification is proved and the prosecution through the evidence of the available witnesses has established the case that the accused being a public servant, demanded bribe of Rs.1,000/- 10 for discharging his official duties and the amount of Rs.1,000/- being reward other than the legal remuneration is bribe and accordingly, the trial Judge has found him guilty and convicted and sentenced him.
17. Insofar as, the witnesses are concerned, Sri. A.C.Renuka Prasad, PW1 states in his Chief Examination that he was discharging duties as Tahsildar in Sira on the date of incident and during the said period accused was working as Second Division Assistant. On 16.7.2008 he came to know that the accused was trapped for having demanded and receiving the bribe from the complainant-Thimmanna who was entitled for compensation. Lokayukta police played the voice recorder/cassette in his presence and asked to identify the voice. After hearing, he confirmed the voice of the accused. No significant contradictions could be seen in his cross examination. 11
18. PW2-D.S.Ramesh is the Assistant Engineer working in PWD. He tells that at the time of incident, he was working as Junior Engineer in PWD Sira and on request, prepared spot sketch as per Ex.P1.
19. PW3-Thimmanna is the complainant. He states that he has not lodged any complaint against the accused voluntarily. His version is that he has received Rs.10,000/- as compensation and his LTM was obtained and amount was paid. He never gave complaint in this connection against the accused. Accused has not demanded any amount. He identifies the LTM on the entrustment mahazar Ex.P3, and Trap Mahazar, Ex.P4, He was treated as hostile and was cross examined by the learned Public Prosecutor.
20. Complainant had been there for enquiring regarding the compensation with the accused. To a question that, accused demanded bribe of Rs.1,000/-, his answer is, he does not know. To a further 12 suggestion that because of the recent attitude of the accused, complainant went along with one Thimemgowda, accused demanded the bribe and the complainant lodged the complaint. He does not know regarding the complaint, proceedings through entrustment mahazar, production of notes and smearing of phenolphthalein powder, counting the notes and keeping it in cover and explaining and giving instructions to him and the shadow witness. Thus he does not know his grievance when the Ex.P1 complaint came to existence.
21. It is necessary to mention that Venkatesh, S/o K. Dasappa who is stated to be a shadow witness died before the commencement of trial.
22. PW-4 K.S.Govindaraju is a second witness. He is also working as Second Division Assistant in BEO Office. He was informed by his superior officer that in pursuance of the requisition received from Lokayukta, 13 he was asked to go to Lokayukta Office on 16.7.2008. When this witness went there, he found another witness and complainant. They were introduced to each other. Details of the complaint were explained regarding the demand of Rs.1,000/- by the accused from the complainant in respect of disbursement of compensation of Rs.10,000/- to the complainant on account of death of his cows.
23. He narrates the proceedings related to the production of amount of Rs.1,000/- in the denomination of Rs.100/- x Rs.10/-= Rs.1,000/-, noting of the numbers of the notes on a paper which is marked as Ex.P3 during the trial. He also states regarding passing of instructions by the Lokayukta Police Inspector and steps to be followed. His further deposition is in respect of smearing phenolphthalein powder on the currency notes and this witness being asked to keep the notes in the pocket of the 14 complainant with instructions not to touch it and amount to be paid in the event of demand only to the accused.
24. His further deposition related to proceedings of trapping. He also states that after coming into contact with the said notes that were smeared on phenolphthalein powder, his hand was washed and the colourless solution upon such wash turns into pink colour. He identifies his signature on Ex.P3 and P4 and signature marked as Exs.P3(a) and P4(a) respectively.
25. After completing the instructions they went to Sira, parked the car opposite to Taluk Office. He identifies the accused in the open court. The complainant was instructed to pass the signal in the form removing and tying turban. He further deposes that they went near the office of accused, they took respective positions. The complainant and Venkatesh (first witness who is no more) went inside and after a 15 while complainant came and passed the signal in the manner as instructed to him earlier. This witness and Lokayukta police entered inside the office of accused. He tells that accused was caught by the lokayukta police. At that time, the amount fell down below the table and on the instruction to this witness by the police, he lifted the currency and counted the same and it was tallying. Immediately, solution was prepared sample was taken sealed. In the remaining solution the hands of the accused were washed and the solution assumed pink colour. He tells that hands of the accused turned to pink. The currency notes were compared and they were tallying, put in a cover and seized the same. Accused was asked to remove the pant and pocket of the pant was washed with the solution upon which solution turned to pink colour.
26. The remaining solution was also collected and stored in a bottle. When the signature of this 16 witness was taken on seized articles, photographs were taken, both in the office of lokayuktha and in the office of the accused as well as per Ex.P3 entrustment mahazar and Ex.P4- trap mahazar.
27. He has been cross examined by the learned counsel for appellant. It is elicited from him that he does not know at what time his superior officer has received requisition to send the witnesses. He denies the suggestion regarding the demand, narration drawing up of mahazar and regarding trapping of accused.
28. PW5-H.R.Srinivasa is the then Deputy Commissioner of Tumakuru and he has given sanction to prosecute the accused.
29. PW6-Ashwathanarayana is the retired Dy.S.P. who has registered the case in Crime No.9/2008 and conducted the investigation in part. 17
30. PW7-B.Umashankar is working as Police Inspector at Lokayukta. Both PWs 6 and PW7 who are police officials speak regarding the official acts of registering the case and conducting the investigation.
31. The question that come up for consideration is, whether the trial Judge considered the aspect and was there a case for convicting the accused with the available materials in the form of oral and documentary evidence and material objections. In this connection, it is necessary to mention the admitted facts which are as under:
32. The complainant was maintaining cattle shed and his two cows died because of rain and shattering of lightening and thunderbolt and a compensation of Rs.10,000/- was awarded by the Tahsildar. The complainant in tandem denies the suggestions put by the learned Public Prosecutor and former turned hostile to the prosecution case. The 18 seized articles in the case are: MOs 1 to 5 which are seized documents, 12 photos with negative, sample of sodium carbonate solution, handwash solution of witness Govindaraju, sample of sodium carbonate solution, Rupees one thousand cash in sealed cover, resultant wash of the accused, pant of accused, resultant handwash of accused.
33. PW1 is official witness head of the office where the accused was working, the former has no bias or malice or animosity against the accused. His version is reliable.
34. It is necessary to mention that entrustment mahazar marked as Ex.P3 contains the narration of the proceedings in the office of lokayukta police on 16.7.2008 such as presence of complainant, the witnesses, police inspectors, constable, complainant narrating the gist of the complaint after he was being 19 introduced to the witnesses. Thereafter, producing Rs.1,000/- in currency notes of Rs.100 x 10, serial numbers of currency notes and noted on a document which came to be marked as Ex.P3, preparation of sodium carbonate solution, taking out sample and in the remaining solution the witness PW4 being asked to wash his hands as they had counted currency notes after they were smeared of phenolphthalein powder, colourless solution turning to pink colour, collecting the sample in a bottle and seized it.
35. Similarly, in the trap mahazar wherein it is narrated regarding the activities that went on in the office of the accused on 16.7.2008 wherein the witnesses are Venkatesh and Govindaraju.
36. It is stated that the instructions given to witnesses were reminded again before taking the position, entrustment mahazar was completed between 13.45 hours in the office of lokayukta. At about 4.45 20 p.m. they reached Sira and the vehicle was parked in a place ensuring that it would be not in the sight of the accused, complainant and shadow witness were sent inside the office of the accused, returning after five minutes along with shadow witness comes out, passing the signal by tying his towel as turban. The Police Inspector and the team of lokayukta rushing inside the office of the accused, who was sitting there on an enquiry the complainant showed the accused and when the lokayukta police went to catch him he was frightened and dropped the currency notes that was in his pant pocket. Immediately, Lokayukta Police Inspector and other police held his right shoulder and left shoulder of the accused as per instructions and thereafter the inspector tied his hands then the Inspector told him that the former has arrested the latter. The hands of the accused were washed with the help of solution of sodium carbonate that was prepared there, out of solution so prepared, sample was taken out 21 and put in a bottle that was seized and in the remaining solution the hands of the accused was asked to be washed, upon which solution turned to pink colour. Both the hands of the accused turned to pink colour and the said solution was seized. Thereafter, the police inspector asked for tainted currency and to show the currency notes which prosecution claimed that was dropped by the accused to the floor. Ten currency notes of Rs.100/- each bearing serial numbers as mentioned in Ex.P3 and asking the shadow witness Venkatesh by the Inspector to count the same and it was revealed by Venkatesh that himself and the complainant went inside the office of the accused and he saw that accused was seated on the western side, the complainant asked the accused regarding the cheque for the amount of compensation. The complainant saluted the accused and enquired about the cheque and accused asked whether the amount was brought and it was then the complainant came to know about the same. The other 22 formalities of conducting mahazar, spot or seizure, seizing of items that were seized during the mahazar, the accused was asked to recount the notes and as per the instruction of the inspector witness Govindaraju took the currency and the necessary formalities of preparation of collecting sample of sodium carbonate solution, thereafter washing the fingers of the accused and the colourless sodium carbonate solution turning into pink colour.
37. Insofar evidence on hand is concerned, it is that of the complainant who turned totally hostile. Shadow witness Venkatesh is reported to be dead. Now the question is, before coming to a conclusion regarding hostile witness, it is necessary to make a mention about the meaning of hostility which is considered in many versions or angles.
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38. In a criminal proceeding when a witness whether stated in the final report or not deface the prosecution and goes against the very claim of the prosecution is normally referred as hostile to prosecution. It may not be hostile to justice. It is just hostile to prosecution. More particularly, in respect of the witnesses of whom statement under Section 161 is recorded when the witnesses assails from the version stated in their statement under Section 161 Cr.P.C. he cannot be branded as hostile considering the contents of statement under Section 161 as gospel truth. There are statements wherein statements made under Section 161 of Cr.P.C. may be wrong, wherein, it is quoted as witness turned opposite to prosecution. At the same time, the witnesses who are stated in the latter parts of the trial not being stated at the time of filing the final report, invariably, the statement of 161 of those witnesses are not available and they have on done to tell what they no about the case. If they give a 24 fresh version it is against the prosecution version they cannot be granted as hostile to proceedings. Prima facie it is opposite to the version of the prosecution.
39. After appreciation of the entire evidence available on record and when the right, wrong, probabilities and legal position is considered, it concludes that the version of the witness is diagonally opposite to prosecution case.
40. Among the witnesses, it is not total number of witnesses that is required to be considered as evidence has to be weighed and not counted and cannot be assessed with the voluminous or flowery language.
41. Reliability on the version any spoken by a witness is directly proportional to the amount of confidence which it inspires when happening or otherwise of a event, existence or otherwise of a state of affairs if convinced in either of the way to the court, 25 there is no necessity for searching for another piece of evidence to pave the first one. The relevant factor would be binding nature of the set of circumstances which inspire confidence.
42. In a criminal trial, there is no concept of majority of the witnesses to hold sway of the proceedings. The reliability, truthfulness, inspiring full confidence of the court that matters even may be in minority. In the circumstances of the case it is clear that complainant has not supported the case of prosecution and shadow witness -Venkatesh -CW-2 is dead. The next witness is PW-4 -Govindaraju. Comparison of version of complaint with the evidence of complainant clearly spells out that complainant has retracted the version and prosecution has no endorsing evidence from the complainant.
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43. Thus, the result of the evidence of the complainant including Exhibit P-2 complaint are to be weighed with the other evidence on record. The Tahsildar who is examined in the case as PW-1 tells that accused was working as SDA under him and in his office at Sira Taluk and on the date of incident he came to know that the accused was trapped and Lokayuktha police wanted him to listen and identify the voice and upon playing of such Audio based on the conversation he identifies the voice of the accused.
44. Thus, the Tahsildar has spoken about his participation in the proceedings and during cross examination he states about the presence of accused, news of trapping and he being subjected to examination on the date of incident. Further in corruption cases, the amount of demand alleged by the complainant has to be produced by the complainant and the said amount will be subjected to mahazar to get clarity and certainty and 27 it is the said amount that will be used in proceedings where accused receives it or not, regard being had to the fact that amount will be in deposit.
45. It was submitted by learned Special Public Prosecutor that the amount of Rs.1,000/- was refunded to the complainant. The complainant also stands there to answer why and how he got back Rs.1,000/-. Amidst first version he forgets to tell about the necessity of Rs.1,000/- either he proceeding before Lokayuktha or obtaining the refund of the same. This is one of the circumstances where the complainant stands exposed. The tone and tenor of his evidence is almost as a defence witness giving evidence on behalf of prosecution.
46. If there was chemical test in the Lokayuktha office as admitted by the complainant and a big question that was not answered by complainant nor explanation given, is that he admits his presence in the 28 Lokayuktha office and proceedings thereon. However, during his evidence before the court his version is that he did not lodge complaint. Accused never demanded money. They were not seized in the office of the accused and there was no demand. But, does not explain why he was present in the Lokayuktha office on that day. Secondly he was not in any corridor or near stair case but exactly inside the chamber of police inspector.
47. It could be seen from the photographs that complainant was sitting in the photographs as per M.O.2 and amount was inserted in his pocket. Thus version spoken by him do not sink with his stand and the acts. It is not that he has discussed as against him but it is a hard reality. He further tells that he is illiterate and affixed left thumb mark but he identifies his LTM. Regard being had to the fact he cannot sign.
48. There is a photograph wherein PW-4 is inserting money into pocket of complainant in the 29 Lokayuktha Office as reflected in the photograph M.O-2. But this witness has his stand that no such things happened. He admits his photographs of proceedings conducted in the Lokayuktha office.
49. Learned counsel for appellant would submit the element of demand is not proved. In this connection it is necessary to glance Section 7 and Section 13(1)(d) of Prevention of Corruption Act, 1988 which is as under:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, 30 favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years' and shall also be liable to fine."
13.Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or 31 reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-32
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four 33 years] but which may extend to [ten years] and shall also be liable to fine.
50. Insofar as Section 13(1)(d) is concerned the offence is punishable for acquiring unlawful consideration either in cash or kind, it could be through any one of the offence committed under other provisions of Section 13(1) and also in case of a public servant amount received as a bribe, after the same was demanded. Accused is not an illiterate, he worked as a SDA, quite conversant with the office procedure. Moreover, pendency of the file is not disputed.
51. In this connection when police abruptly entered the office of the accused and after formalities when his explanation was sought, he has given and it is seen by the accused as well.
52. This explanation is not denied by the accused and it is in his handwriting and it tells his stand. Regard being had to the fact it is not confession. 34 On the other hand he explains the matter that the complainant was granted compensation of Rs.10,000/- over the death of two cows. He tells that complainant came along with another person and in forced way kept money to the hand of the accused. Immediately police entered.
53. Technically he denies the demand and receipt and attributes voluntary offering and force by the complainant. Insofar as proceedings therein are concerned regarding complainant passed the signal, the police people arrived there disclosing their identity, hearing the matter from the complainant then holding the accused after coming to know and receiving the information from the complainant that accused has received bribe. The evidence of PW-4 -Govindaraju in this connection is that after ascertaining about the happening and when the complainant told that the accused demanded and received the amount he was 35 held by police officials as in the photographs it is seen that two persons said to be Lokayuktha police in mafti holding the hands of the accused.
54. Further it is stated that the amount fell down below the table and it was collected and counted by PW-4. The investigating authority has spoken regarding formalities conducted right from registration of the case. Thus, the complainant has tried his best to suppress the matter as much as possible and regard being had to the fact that he is wholly unreliable witness and he was exposed during the proceedings before the Court.
55. Proceedings under the Prevention of Corruption Act, 1988 does not give exclusive significance or emphasis on Phenolphthalein powder and sodium carbonate solution or the chemical effect when both of them are brought together. Nevertheless they provide corroboration.
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56. It is an exercise that is effected in order to know the result of scientific verification. In this connection the effect of Phenolphthalein powder, sodium carbonate solution was explained during entrustment mahazar. The procedure regarding preparation, separating sample of the solution, smearing of Phenolphthalein powder on the currency, preparation of solution, collecting sample, washing of the hands including accused who came into contact with Phenolphthalein powder are done and there are no lapses.
57. It is in this background the stand of the accused is passive approach where he was expected to speak.
58. Insofar as demand is concerned the complainant either may be nervous or bogged down to pressure of the accused. He does not know about 37 entrustment mahazar but admits his LTM on the complaint, entrustment mahazar or trap mahazar. Thus, in the course of his hostility what is seen is he stated as much as it is not true to him. He is tight lipped to give reasons when he admits his photos during mahazar at Lokayuktha office.
59. It is stated that during certain circumstances there will be delay in making complaint. In this connection the first statement in the form of Exhibit P-5 by the complainant is his explanation at the earliest point and at the earliest opportunity. The seizure of currency notes is from the office of the accused. They are the same currency notes that were subjected to mahazar in the Lokayuktha office.
60. There are ample and believable evidence of the accused wherein the complainant carried cash after the proceedings and complainant having participated in the proceedings and received information. The evidence 38 of PW-4 investigating officer suggests that they traveled from Lokayuktha office to office of the accused and complainant and the shadow witness entered the place of the accused. Complainant does not speak about the amount of cash that was produced before the Lokayuktha inspector, subjected the same for mahazar, carrying out in the pocket or going to the office of the accused.
61. The documentary evidence, circumstances, oral evidence of PWs-1, 4 and 5, investigating officer - PW-7 go against the evidence and stand of the complainant.
62. It is necessary to mention that the complaint for an offence relating to proceedings under Prevention of Corruption Act cannot be exclusive for an aggrieved party to frustrate the object and purpose of the Act. He cannot undo the matter what is done by relevant and legal angles.
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63. I am of the view that the learned Special Judge has rightly found the accused guilty of having committed the offence punishable under sections 7 & 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
64. For the reasons morefully described above, I find that there is no infirmity or irregularity in the judgment of the trial court. Even there is no merit in the appeal.
65. However, the learned counsel for the appellant submits to the effect that the appellant has lost the job and has children and has a series of responsibilities.
66. In the context and circumstances of the case, it is to be seen that the learned trial Judge has sentenced the accused to undergo rigorous imprisonment for six months and fine of Rs.5,000/-, in 40 default to pay fine to undergo rigorous imprisonment for three months for the offence punishable under Section 7 read with Section 13(2) of the Prevention of Corruption Act and further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.5,000/-, in default to pay fine to undergo rigorous imprisonment for three months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. But the minimum sentence provided under the old Act is imprisonment for a period not less than six months for the offence punishable under section 7 and maximum being five years and also liable to fine. So far as Section 13(1)(d) is concerned minimum sentence is imprisonment for a period not less than one year and maximum being seven years and also liable to fine. In the circumstances it is just and proper to impose minimum sentence by modifying the Judgment and order dated 07.12.2013 passed in Spl.C.No.93/2009. 41
Hence, appeal is partly allowed. Accused is sentenced to undergo imprisonment for a period of six months for offence punishable under section 7 and one year for the offence punishable under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act and with fine amount of Rs.1,000/- and Rs.2,000/- respectively. In default to pay fine amount, to undergo further imprisonment for 15 days and one month for offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act respectively.
Accused is entitled for set off against the period of judicial custody if any and at the same time both substantive sentences shall run concurrently.
Sd/-
JUDGE tsn*/SBN/HR