Karnataka High Court
Jagadeesh Keshav Shenvi vs The State By The Inspector Of Police on 31 July, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31ST DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.745/2008
BETWEEN:
Jagadeesh Keshav Shenvi
Age: 67 years
R/o. Baad, Karwar Taluk
Now at Behind Marigudi, Sirsi
Taluk: Sirsi
Uttar Kannada District. ...Appellant
(By Sri Vinay S.Koujalagi, Advocate for Sri V.M.Sheelvant,
Advocate)
AND:
The State by the Inspector of Police
Police Wing
Karnataka Lokayukta
Karwar. ...Respondent
(By Sri M.B.Gundawade, Advocate)
This appeal is filed under section 374(2) Cr.P.C.,
praying to set aside conviction and sentence passed in
Special Case No.2/1999 dated 20.06.2008, on the file of
District & Sessions Judge, Uttara Kannada, Karwar & etc.
This appeal coming on for final hearing this day, the
court delivered the following:
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JUDGMENT
The appellant (hereinafter referred to as 'accused') was tried, convicted and sentenced for offences punishable under sections 7, 13(1)(d)(i) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act'). Therefore, he has filed this appeal.
2. I have heard Sri Vinay S.Kaujalagi, learned counsel for appellant and Sri M.B.Gundawade, learned counsel for respondent.
3. The accused was working as a Revenue Inspector in Hulekal, Sirsi Taluk. He was tried for following charges:-
"That on 31/3/98 you were the Revenue Inspector, a public servant, then working in the O/o Dy. Tahasildar, Hulekal, Sirsi Taluka, demanded gratification of Rs.1,400/- otherwise than legal fees to recommend for grant of gun licence to the complainant Ramachandra Raghavendra Hegde and trapped by the police wing Karnataka Lokayukta and that thereby committed offences punishable U/sec.7, 13(1)(d) 3 r/w 13(2) of the Prevention of Corruption Act, 1988 and within my cognizance."
4. As already stated, learned Special Judge convicted accused for aforestated offecnes. Before adverting to the evidence adduced by prosecution, defence of accused and findings recorded by learned Special Judge, it is necessary to state certain facts, which have not been disputed by both parties.
During relevant period, accused was working as a Revenue Inspector in the office of Deputy Tahsildar at Hulekal, Sirsi Taluk. The father of PW1-Ramachandra was holding a licenced firearm. PW1 applied for transfer of licence of firearm from the name of his father to his name, inter alia stating that his father is sufficiently old. PW1 held large extent of land and he requires firearm for protection of his properties and person. The application and necessary documents were submitted to the Tahsildar at Sirsi. The Tahsildar at Sirsi (PW3-M.Raghunath) forwarded application of PW1 to accused for enquiry and report. On 31.03.1998, 4 PW1 had lodged a complaint with Police Inspector of Lokayukta (PW8-Bashasab) as per Ex.P.20, stating that on 21.03.1998 PW1 had met the accused in connection with transfer of firearm licence. At that time, accused told PW1 that he has to pay a sum of Rs.1,400/- to accused to take care of his application and to attend the work of transfer of firearm licence. PW1 told accused that he had not brought money. The accused told PW1 that he would forward application to Tahsildar and PW1 should pay a sum of Rs.1,400/- to accused, without fail. Thereafter, PW1 went to the office of Tahsildar at Sirsi and found that accused had not forwarded his application.
5. On 26.03.1998, PW1 again met accused and enquired the accused about application submitted by PW1. At that time, accused demanded PW1 that he had not paid a sum of Rs.1,400/-. If the amount is paid, accused would forthwith send the application. PW1 told accused that he would pay money either on coming Monday or Tuesday. Thereafter, PW1 filed first information as per Ex.P.20. 5
6. The accused has put forth a specific defence that what was paid to him by PW1 was not bribe. During the relevant period, Tahsildar at Sirsi had directed revenue officials, including the accused to persuade public who approach them in relation to their official work to purchase National Savings Certificates (for short, 'NSC'). The accused had told PW1 that he had to pay a sum of Rs.1,400/- to purchase NSC for transfer of firearm licence from the name of father of PW1 to the name of PW1.
7. The learned counsel for accused during cross- examination of PW1-Ramachandra, PW2-Rama Pokka Gouda (shadow witness) and PW8-Bashasab (Police Inspector) has specifically suggested that accused had received instructions from Tahsildar to collect money to purchase NSC. Therefore, accused had asked PW1 to pay a sum of Rs.1,400/- to purchase NSC. After accused was trapped, the accused had given a written statement reading as hereunder:-
"PW1 had given an application to Tahsildar for transfer of firearm licence held by 6 the father of PW1 to the name of PW1. The application was forwarded to him. PW1 had met accused on 31.03.1998 and paid him a sum of Rs.1,400/- to purchase NSC. Therefore, accused had neither demanded bribe nor accepted bribe from PW1. The accused has also contended that he had submitted his report in relation to application submitted by PW1 to Tahsildar before 31.03.1998. Thus, as on 31.03.1998, application given by PW1 was not pending before him. The accused did not have any official work to show in favour of PW1."
8. The evidence relating to preparations of trap is given by PW1, PW2, PW7 & PW8. The accused has accepted that PW1 had paid a sum of Rs.1,400/- to accused in the office of Revenue Inspector at Hulekal, however not as bribe, but towards purchase of NSC. Therefore, evidence of prosecution witnesses as it relates to first information lodged by PW1 and preparations made by Police Inspector of Lokayukta to trap accused in the office of accused need not be discussed in detail. The events that had occurred before trap on 31.03.1998 and events that had occurred after the trap on 7 31.03.1998 will have to be considered to find out if accused had demanded bribe from PW1 and that accused had accepted bribe of Rs.1,400/- from PW1.
9. It is not in dispute and cannot be disputed that application filed by PW1 for transfer of firearm licence had been referred to accused. In that connection, accused had met PW1. PW1 has deposed that accused has demanded a sum of Rs.1,400/- to process application for transfer of firearm licence. PW1 has stated this fact in first information lodged by him. PW1 has reiterated the same in his evidence. PW1 has denied suggestion that accused had asked PW1 to pay a sum of Rs.1,400/- to purchase NSC.
10. PW2-Rama Pokka Gouda was a shadow witness. PW2 has deposed; on 31.03.1998 after making necessary preparations to trap accused, raiding party consisting of PW1, PW2 & PW8 travelled in police jeep to Nadakacheri at Hulekal. They stopped jeep at a distance of half a furlong from Nadakacheri. Thereafter, PW8 (Police Inspector) 8 instructed PW1 to give tainted currency notes (which had been entrusted to PW1 by PW8) to accused only if bribe is demanded by accused; PW2 was instructed to follow PW1 to observe as to what would transpire between accused and PW1; on that day at about 3 p.m., PW1 & PW2 reached the office of accused; accused was not in the office; on enquiry, they learnt that accused had gone to the office of Tahsildar in connection with a meeting and accused would return at 4 p.m.; PW1 & PW2 were waiting for accused; at 4 p.m., accused came on motorcycle and parked motorcycle near his office; PW1 told PW2 that person who reached the office on a motorcycle was the accused. The accused entered office and took his seat; PW1 met accused and enquired about application submitted by him relating to transfer of firearm licence; accused asked PW1 if he had brought money; PW1 told accused that he had brought money; PW1 gave tainted currency notes to accused and accused received tainted currency notes in his right hand, he counted the same and kept the same in his pocket; accused told PW1 that he has 9 done work of PW1 and he has forwarded report to the office of Tahsildar on 25.03.1998 and told PW1 to go to the office of Tahsildar at Sirsi; thereafter PW1 came out and gave pre- determined signal to PW8; PW8 entered the office of accused and apprehended accused; accused removed tainted currency notes from his pocket and kept the same on table; hands of accused were washed in sodium carbonate solution, the resultant wash turned into pink colour; resultant solution was collected in a container; thereafter, shirt pocket of accused was washed in sodium carbonate solution, the resultant wash turned into pink colour; shirt was seized; Police Inspector seized tainted currency notes; accused gave a statement that he had received a sum of Rs.1,400/- from PW1 to purchase NSC and not as bribe.
During cross-examination of PW2 by learned counsel for accused, it was specifically suggested to PW2 that accused had received a sum of Rs.1,400/- from PW1 to purchase NSC.
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11. Thus, it can safely be inferred that the accused had sought to establish that he received a sum of Rs.1,400/- from PW1 not as bribe, but it was received by accused from PW1 to purchase NSC.
12. PW7-Shantaram Vinayak Gaonkar, was working as Head Constable in the Office of Lokayukta. PW7 was also one of the members of raiding party. PW7 has given evidence in proof of recovery of tainted currency notes from the possession of accused.
During cross-examination of PW7 by learned counsel for accused, it was suggested to PW7 that after trap, accused told Police Inspector that he had not received bribe, on the other hand, he had received amount from PW1 to purchase NSC.
13. PW8-Bashasab was Police Inspector of Lokayukta. PW8 has given evidence about recovery of tainted currency notes. PW8 has deposed about first information regarding demand of bribe by accused and purpose for which bribe 11 amount was paid. PW8 has deposed about recovery of tainted currency notes from possession of accused.
During cross-examination of PW8 by learned counsel for accused, PW8 has admitted that application submitted by PW1 for transfer of firearm licence had been forwarded to the office of Tahsildar; immediately after trap, accused gave a written statement that PW1 had paid a sum of Rs.1,400/- to accused to purchase NSC and not as bribe. It was also suggested to PW8 that Deputy Commissioner of Karwar had given instructions to all the revenue officials to persuade public to purchase NSC. During investigation, PW8 had written a letter to Tahsildar as per Ex.P.25 seeking certain clarifications regarding purchase of NSC. The Tahsildar (PW3) had sent his reply as per Ex.P.24, wherein PW3 has specifically stated that he had not instructed accused to receive money from PW1 to purchase NSC in relation to his application for transfer of firearm licence. 12
14. PW3-M.Raghunath, the then Tahsildar of Sirsi has deposed about application submitted by PW1 for transfer of firearm licence. PW3 has deposed that he had forwarded application to accused for his report. The Police Inspector (PW8) had sought for certain clarifications regarding purchase of NSC, target fixed to revenue officials to persuade public to purchase NSC. PW3 has deposed that Deputy Commissioner has issued a circular to revenue officials to persuade public to purchase NSC, however PW3 has denied suggestion that revenue officials were instructed to collect money from public. PW3 has admitted that accused had submitted his report on 27.03.1998.
15. The learned counsel for accused would submit that as on 31.03.1998, application submitted by PW1 was not pending with accused. The accused had prepared report and submitted his report on 27.03.1998. In the circumstances, evidence of PW1, on 31.03.1998 accused had demanded bribe from PW1 looks improbable. The defence of accused that he had received money from PW1 to purchase NSC finds 13 support from the evidence of PW3. Therefore, learned Special Judge should not have convicted accused.
16. The learned counsel for respondent would submit that mere fact that accused had already submitted his report to Tahsildar on 27.03.1998 cannot be a ground to discredit evidence of PW1 that accused had demanded bribe from PW1. The accused had demanded and received bribe as a motive or reward for discharging his official duties in favour of PW1. Therefore, submission of report by accused cannot be a ground to discard evidence of PW1.
17. The learned counsel for respondent would submit that accused had not received any official instructions to collect money from public to purchase NSC. Therefore, defence put forth by accused that PW1 had paid a sum of Rs.1,400/- to accused to purchase NSC is false.
18. It is true that PW3 has admitted that accused had forwarded his report on 27.03.1998. PW1 has given evidence that he had met accused on 31.03.1998 and accused 14 demanded bribe of Rs.1,400/- from PW1 and received the same from PW1. PW1 has deposed that after receipt of bribe, accused has told PW1 that he has forwarded his report to office of Tahsildar at Sirsi and he could take up the matter with Tahsildar.
19. The defence put forth by accused is mutually contradictory. If accused had forwarded report on 27.03.1998, there was no need for him to receive a sum of Rs.1,400/- from PW1 to purchase NSC on 31.03.1998. When prosecution has proved that accused had received tainted currency notes from PW1, burden would shift upon accused to prove that what was received by him was not bribe/illegal gratification and it was received for legitimate purposes.
20. In terms of section 20 of the Act, accused has to discharge this burden by adducing evidence or by relying upon evidence adduced by prosecution, which should stand the test of preponderance of probabilities. 15
In the case on hand, defence of accused that he had received instructions from Tahsildar to collect money from public to purchase NSC is falsified from evidence of PW3. Even if there was an instruction to accused to persuade public who would come to office in connection with official work to purchase NSC, such an instruction cannot be construed as an instruction given to accused to collect money from public (PW1). The evidence of PW1, PW2, PW7 & PW8 is consistent and credible in proof of demand and acceptance of bribe. The accused has failed to prove that he had received a sum of Rs.1,400/- from PW1 towards purchase of NSC.
21. It is true that presumption available under section 20 of the Act is only with reference to an offence punishable under section 7 of the Act and not with reference to section 13(2) of the Act. The learned Special Judge bearing in mind this legal aspect has held that presumption can be available only with reference to an offence punishable under section 7 of the Act. The learned Special Judge on proper appreciation 16 of evidence of PW1, PW2, PW7 & PW8 and defence put forth by accused has held that defence of accused does not stand the test of preponderance of probabilities. It is not sufficient to rebut presumption available under section 20 of the Act.
22. Thus, on re-appreciation of entire evidence, I find that learned Special Judge has not committed any error in convicting accused for offences punishable under sections 7, 13(1)(d)(i) r/w 13(2) of the Act. The learned Special Judge while imposing sentence has taken age of accused and other factors into consideration. The learned Special Judge has passed minimum sentence of imprisonment provided for offences punishable under sections 7, 13(1)(d)(i) r/w 13(2) of the Act. There are no reasons to interfere with impugned judgment.
23. In the result, I pass the following:-
ORDER The appeal is dismissed.
SD/-
JUDGE SNN