Karnataka High Court
The State Of Karnataka vs Dyamappa Somappa Agasimani on 3 December, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3rd DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRIMINAL APPEAL No.2530/2012
BETWEEN:
The State of Karnataka
Through Lokayukta Police
Dharwad.
... APPELLANT
(By Sri. M. B. Gundawade, Advocate)
AND:
Dyamappa Somappa Agasimani
Age: 60 years, Occ: First Grade Surveyor
In the office of ADLR
Hubl-Dharwad City Survey, At: Hubli.
... RESPONDENT
(By Sri. Mohankumar M., Advocate)
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THIS CRIMINAL APPEAL IS FILED U/S. 378(1) AND
SEC. 378(3) OF CR.P.C. 1973, SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY
THE III ADDL. DISTRICT AND SESSIONS AND SPECIAL
JUDGE, DHARWAD ON 29.07.2011 IN SPL. (KLA)
C.C.NO.4/2007 IN FAVOUR OF RESPONDENT-ACCUSED,
FOR THE OFFENCES P/U/S. 7, 13(1)(D) R/W. 13(2) OF
THE P.C. ACT AND ETC.
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THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State is in appeal against the acquittal of respondent for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C.Act' for short).
2. Heard Sri. Gundawade, learned standing counsel for the appellant-Lokayukta and Sri. Mohankumar, learned counsel for the respondent and perused the records in supplementation thereto. It reveals;
One Hanamantappa Savanur claims to have submitted an application on 17.11.2005 to Hubli Dharwad Municipal Corporation, Hubli to survey his property in survey No.367/4F situated in Keshwapur, Hubli. The application was pending without being considered. Thus, Prakash, son of Hanamantappa Savanur approached the respondent herein, who was working as the first grade :3: surveyor on 10.01.2006. He met him in his office in Central Library building, Lamington Road, Hubli and requested to expedite his father's application. It is alleged, the respondent-accused demanded Rs.300/- from him by way of illegal gratification to attend to the application submitted by his father. The complainant was not willing to pay the bribe and hence lodged a report - Ex.P1 before the Inspector of Lokayukta, Dharwad, who registered a case in Crime No.2/2006 and trap was arranged on the same day. Three notes of 100 were treated chemically and given to the complainant to give it to the accused on his demand. He summoned two witnesses to be the shadow witnesses and accordingly the team proceeded to the office of the respondent-accused. PW1 - complainant along with PW2 - Balappa Channabasappa Halakoppa, the shadow witness, entered the chamber of respondent-accused and offered him money. It is alleged, the accused demanded money. PW1 gave the money and gave pre-planned signal to PW7 - Bharamappa Laxman Asude, Inspector of Lokayukta, who :4: rushed to the spot with his staff and after disclosing his identity, checked the office room and found the accused had collected money of Rs.300/- from the accused. His hand wash was collected, which shows coloration and it was seized. The trap panchanama was authenticated by the witnesses.
The accused gave voluntary statement as per Ex.P32 stating that, PW1 had borrowed from him Rs.300/- some times back, on the plea he had shortage of money to pay the electricity bill. However, he had been waiting for payment and after persistent request, PW1 paid the money on the day trap was arranged. In short, the accused took specific defence he received the money as return of money lent to the complainant and not by way of illegal gratification. Despite such explanation, final report was filed indicting him for the offences under the P.C. Act.
3. In the trial that ensued, prosecution examined 8 witnesses, while the accused examined 2 witnesses. The prosecution relied on 43 documents, while the accused :5: relied on 3 documents. The learned trial Judge, analyzing the evidence opined, the prosecution has failed to establish charge against the accused and recorded acquittal, against which this appeal is filed.
4. Sri. Gundawade, learned standing counsel for the appellant submits, the learned trial Judge has failed to notice, the accused had demanded money towards bribe in clear terms and received a sum of Rs.300/- which was the bait money. Thus, the presumption under Section 20 of the P.C. Act to be raised against the accused. The trial Court has failed to do so. The second ground urged is, the statement given by the accused, that Rs.300/- received by him is towards repayment of loan is not true and therefore, that defence had to be rejected. Lastly he submits, that the prosecution witnesses have supported the prosecution case and therefore, there is no scope for acquittal.
5. The respondent's Counsel has supported the impugned judgment.
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6. Keeping in mind what is urged, I have appraised the evidence on record.
7. As could be seen, PW1 - Prashant Hanamantappa Savanur is not the applicant who has submitted the application for survey, but he claims to have gone to the office of the respondent to enquire about the application of his father. It is further to be noticed that, his father Hanamantappa Savanur was not examined by the prosecution to establish that such an application is pending in the office. However, the accused had admitted having received Rs.300/- from PW1. Thus we go on the premise prosecution has established that accused had collected money. PW2 - Balappa Halakoppa was the shadow witness, who has accompanied PW1 - Prashant. He has reiterated the statement of PW1. However to establish alleged demand of bribe, prosecution has examined PW4 - Revanasiddappa. He has produced certain documents marked as Ex.P19 to 24 including the application submitted by the complainant's father. :7:
8. PW5 - B. S. Bavali, a Dalayat in the office of ADLR, Hubli, speaks only of his presence when the Lokayukta officials conducted raid in the chamber of the accused. PW8 - Dr. Baburao Mudabi is the then Commissioner for Survey settlement and Land Records. He was the competent authority who has granted sanction to prosecute the respondent. PW7 - Bharamappa Asude is the Inspector of Lokayukta Police, who has received the complaint - Ex.P1 and prepared entrustment mahazer - Ex.P3 and conducted trap panchanama - Ex.P2. PW6 - Manjappa, the successor of PW7 has filed the final report.
9. The evidence tendered by these witnesses only establishes that Ex.P1 - complaint was given by PW1, which was registered by PW7 and further investigation was taken up. As far as trap proceeding is concerned, it is not in dispute that accused had received money of Rs.300/- from the complainant. But that is not sufficient to establish the charge for the offences punishable under Sections 7 and 13(1) (d) of the P.C. Act. The prosecution :8: had to establish payment of money was towards illegal gratification and that too it was paid on demand made by the accused. It was also to be established that such a bribe was given for official favour, which the accused was competent to give. Except establishing payment of money to the accused, the prosecution has not summoned any witnesses to prove he had received it to show official favour.
10. Be that as it may. We have to consider the explanation given by the accused which is statutorily permitted. Vide Ex.P32 the accused had clearly stated that PW2 had borrowed money of Rs.300/- from him on the pretext he was not having sufficient money to clear the electricity bill and he had lent that money to be repaid. Thereafter, despite his request and demand, PW1 had not returned the money. On repeated demand, on the date of trap, PW1 brought the money and returned it, which he accepted. The question is whether such a defence is :9: believable. It has to be seen from all attending circumstances.
11. The accused has produced through his evidence his assets and liability statements for the preceding year 2004-05 and also assets and liability statement for the year ending 31.03.2005. In those statements he has clearly mentioned, he had lent Rs.300/- to the PW1 - complainant. Even under Section 313 of Cr.P.C. he has produced certified copy of assets and liability statement beginning from 31.03.2004 to 30.03.2005, wherein same entries are reflected. The learned trial Judge has referred to this part of evidence in para 15, which reads thus:
"15. Added to the above, what is also relevant to note that, PW7 in his cross-examination has stated that, he did not obtain a copy of assets and liability filed by the accused in his office for the year 2004- 2005 and in fact had no knowledge whether he had declared in his annual assets and liability statement filed for the year ending with 31.03.2005 indicating that he had lent an amount of Rs.300/- to PW1.: 10 :
However, the accused in his examination u/s. 313 Cr.P.C. has produced certified copies of the assets and liability statement produced with the year ending
31.03.2004 and 31.03.2005. In the statement submitted for the year ending with 31.03.2004 he had declared the hand loan of Rs.500/- given to one Yellappa on 09.02.2004, whereas in the statement filed for the year ending with 31.03.2005, he has shown he had lent hand loan of Rs.300/- to Prashant H.Savanur (P.W.1) on 22.02.2005. This being a public document, there is nothing on file to suspect its veracity."
12. Besides it must be seen, the application given by the father of PW1 is said to be pending for long period and it was also pending as on the date of complaint. The assets and liability statement filed by the department bear testimony to the fact that accused had claimed he has lent Rs.300/- to the complainant in the year 2005 much earlier to filing of the complaint. The raid was conducted on 10.01.2006. Therefore, such an entry cannot be discarded on mere contention that accused might have created such an entry in anticipation of such a trap. It is wholly : 11 : unbelievable because the complaint has been lodged by the complainant only on 10.01.2006 and thereafter trap has been conducted. In a normal course, those entries have been made and were subject to the verification by the employer. Thus such record of entries should be given due credence. In criminal prosecution, the accused is not required to prove his defence beyond all reasonable doubt. If the accused could succeed in advancing a probable defence either by independent evidence or relying on the prosecution evidence itself, then that would be sufficient to impact the prosecution evidence even if it may in the first look appear to be incriminating in nature. Besides, the accused also has an opportunity under Section 313 of Cr.P.C to explain any of the incriminating circumstances proved against him.
13. In the instant case, the accused has taken full advantage of that opportunity and while being questioned under Section 313 of Cr.P.C., has produced the copies of assets and liabilities to substantiate that money was lent : 12 : by him to PW1 and that money was returned to him on the date of trap.
14. In this fact situation, considering the evidence on record, the trial Court could not have been taken a different view than it has taken. Finding of the trial Court that the prosecution has failed to establish charge against the respondent for offences punishable under Sections 7 and 13(1) (d) read with Section 13(2) of the P.C. Act is the result of appreciation of evidence in correct prospective, which call for no interference.
Hence the appeal is dismissed.
SD/-
JUDGE gab/-