Karnataka High Court
K N Puttananjappa vs State By Karnataka Lokayuktha Police on 21 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.1504 OF 2007
CONNECTED WITH
CRIMINAL APPEAL No.1510 OF 2007
CRIMINAL APPEAL No.1504 OF 2007
BETWEEN:
Shivappa,
Son of Puttamadappa,
Aged 43 years,
Occupation: Development Assistant,
SC and ST Development Corporation,
Social Welfare Department,
H.D.Kote.
Now residing at No.605,
13th Cross, G Block,
Ramakrishna Nagar,
Mysore. ...APPELLANT
(By Shri. C.H.Jadhav, Advocate)
2
AND:
The State of Karnataka,
By Lokayukta Police,
Chitradurga,
Represented by
State Public Prosecutor,
High Court Building,
Bangalore - 560 001. ...RESPONDENT
(By Smt. T.M.Gayatri, Advocate for Lokayukta - Respondent )
*****
This Criminal Appeal filed under Section 374 Criminal
Procedure Code, 1973 by the advocate for the appellant against the
judgment dated 12.9.2007 passed by the Special Judge, Mysore, in
Spl.Case No.80/1998 - convicting the appellant/accused for the
offence punishable under Section 7 and 13 (1)(d) read with 13(2) of
the Prevention of Corruption Act and sentencing him to under R.I. for
6 months and to pay find of Rs.20,000/- I.D., to under S.I. for 3
months, for the offence punishable under Section 7 of Prevention of
Corruption Act, further sentencing him to undergo R.I. for 1 year and
to pay fine of Rs.30,000/- I.D., to undergo S.I. for 6 months for the
offence punishable under Section 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, both the sentences shall run
concurrently.
IN CRIMINAL APPEAL No.1510 OF 2007
K.N.Puttananjappa,
Son of Nagappa,
Aged about 52 years,
3
Kundakere Village,
Terakanambi Hobli,
Gundlupet Taluk,
Chamarajanagara District. ...APPELLANT
(By Shri. C.H.Jadhav, Advocate)
AND:
State by Karnataka Lokayuktha Police
Mysore, Mysore District,
Represented by
Government Pleader,
High Court Building,
Bangalore. ...RESPONDENT
(By Smt. T.M.Gayathri, Advocate )
*****
This Criminal Appeal filed under Section 374(1) Criminal
Procedure Code, 1973 by the advocate for the appellant against the
judgment dated 12.9.2007 in Special Case No.80/1998, on the file of
the Principal District and Sessions and Special Judge, Mysore -
convicting the appellant / accused No.2 for the offence punishable
under Section 8 of the Prevention of Corruption Act, and sentencing
him to undergo R.I. for six months and to pay fine of Rs.25,000/- in
case of default, to undergo S.I. for six months, for the offence
punishable under Section 8 of the Prevention of Corruption Act.
These Criminal Appeals having been heard and
reserved on 11.6.2012 and coming on for Pronouncement of orders
this day, the Court delivered the following:-
4
JUDGMENT
These appeals are heard and disposed of together having regard to the fact that the same are preferred against the same judgement by the two accused, respectively. The appeal in Crl.A.No.1504/2007 is filed by accused no.1 and the appeal in Crl.A.No.1510/2007 is filed by accused no.2 before the court below.
2. The facts of the case are as follows:-
It was the case of the prosecution that the complainant's father one Basappa was the owner of land measuring 6 acres 7 guntas in Survey No.211 of Chirakanahalli, Gundlupet Taluk, Mysore District. The same was acquired for the benefit of the Scheduled Caste and Scheduled Tribe Development Corporation (hereinafter referred to as the 'Corporation' for brevity) and the compensation amount was to be paid to the complainant's father. It was alleged that accused no.2 had assured the complainant and his father that the release of the 5 compensation amount through accused no.1, who was employed as the Development Assistant in the Corporation would be accepted if out of the compensation amount payable, 30% was paid to accused no.1, which amounted to about Rs.9,500/-. The complainant therefore had filed the complaint before the Superintendent of Police attached to the office of the Lokayuktha on 20.9.1996, who in turn, had formed a team to trap the accused red-handed while demanding and receiving the said illegal gratification. It was arranged that one of the members of the team would go along with the complainant and his father to act as a witness to the sequence of events that would transpire and the complainant was to signal the other members of the team by dropping a hand bag that he would be carrying at the appropriate time when the money was demanded and was handed over to the accused. Accordingly, the entire team went to the office of the Corporation and at about 12.10p.m., the investigation officer and other witnesses and his crime squad were all waiting outside when 6 they saw the complainant and one of the witnesses, namely, PW.1 along with two others, had come out of the office and went towards the bank and thereafter had come out of the bank and had together proceeded towards a public park. The investigation officer and his team, who were watching from a distance, observed the complainant dropping his hand bag, at which time, the Superintendent of Police, Lokayuktha and other members of the staff moved in and apprehended both accused nos.1 and 2, upon the complainant informing them that they had received the bribe amount. From there, since the arrest was at a public park, they were taken to the Lokayuktha Office and the bribe amount that was received from the complainant amounting to Rs.11,000/- was seized and sealed. Though the accused had offered explanation, which was recorded as per Exhibits P.2 and P.3, PWs.1 and 6, namely, the panch witness and the trap witness and the complainant had denied the explanation offered as being false. It is thereafter that certain blank stamp papers duly 7 signed by the complainant and his father and others were seized from the possession of accused no.2 and a panchnama was conducted, which was duly endorsed by the panch witness and the complainant. Thereafter, further investigation having been taken up, sanction for the prosecution against accused no.1 also having been obtained, the charge-sheet was filed.
The accused denied the allegations and pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 17 and marked Exhibits P.1 to P.19 and Material Objects 1 and 2. The court below framed the following points for consideration:-
1. Whether the prosecution proves that the accused no.1 being a Government Servant in SC & ST Corporation, H.D.Hote, and accused no.2 being resident of Chirakanahalli, Gundlupet Taluk have demanded 30% of the cheque amount of Rs.31,000/- as a bribe, which is to be paid to CW.29 Basappa, father of the complainant - PW.6 towards the 8 comepnsation of the land sold by him to the said Corporation?
2. Whether the prosecution further proves that the accused No.1 and 2, in furtherance of their conspiracy, on 20.09.1996 accused No.1 and 2 along with CW.29 and PW.6 went to Manuvana Park and out of the cheque amount, dishonestly retained Rs.11,000/- with them as a bribe amount and returned only Rs.20,000/- to CW.29 stating that share is to be given to accused No.2 also?
3. Whether the prosecution further proves that accused No.1 0and 2 hatched a criminal conspiracy, forcibly and dishonestly obtained thumb impression of witness PW.6, PW.11, CW.29 Basappa upon blank stamp papers as a security for the said bribe amount with an intention to file a suit against him to recover the said amount, thereby have committed cheating and forgery?9
The court below answered points - 1 and 2 in the affirmative and point no.3 in the negative and sentenced accused no.1 to undergo rigorous imprisonment for six months and to pay a fine of Rs.20,000/- for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act' for brevity) and was also sentenced to undergo rigorous imprisonment for one year and to a pay a fine of Rs.30,000/- for an offence under Section 13(1)(d) and 13(2) of the PC Act. Accused no.2 was also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/- for an offence punishable under Section 8 of the PC Act.
It is that which is under challenge in the present appeals.
3. The learned counsel for accused no.1 would contend that there are serious infirmities, which have been completely overlooked by the court below. As for instance, it is on record that CW-29, who 10 was the complainant's father had, in fact, lodged a complaint on 19.9.1996. However, the same has been suppressed and it is made to appear that the complaint was only lodged on 20.9.1996 by PW.6, who was the son of CW.29. This glaring discrepancy has been admitted in cross-examination of the concerned officer, who has recorded the complaint. There is no explanation forthcoming as regards the reason why if a complaint had been lodged on the previous day, there is no indication of the same and the same has been deliberately suppressed unless there was a design in seeking to foist a case against the accused.
Further, the evidence of PW.6 is replete with inconsistencies vis-a-vis the case of the prosecution and therefore, there is absolutely no corroboration of the allegations and in the absence of any other independent witness providing such corroboration, the conviction of accused no.1 was not justified. It is pointed out that the independent witnesses who have been examined by the prosecution namely, PWs.7 11 to 10 and PWs.12 and 13 have not supported the case of the prosecution. Therefore, the findings of the court below based on the evidence of the interested witnesses cannot be sustained. It was the categorical statement of PW.6 that the alleged bribe amount was handed over to accused no.2, in which event, it could not be said that accused no.1 had committed any offence as alleged by the prosecution. The presence of accused no.1 at the time of withdrawing the money was only on account of the fact that he was required to identify the complainant's father, who was the recipient of the amount covered under the cheque towards compensation payable in respect of his land. Therefore, it cannot be said that there was any evidence against accused no.1 of having demanded and received illegal gratification in order to bring home the charge.
The further discrepancy and inconsistency in the evidence of the prosecution is that PW.14, a Cashier at the bank where the cheque handed over to the father of the complainant was encashed, had in 12 his evidence stated that the cash was handed over to accused no.1 and has, in cross-examination, also stated that the amount could only be paid to the holder of the cheque, namely, the father of the complainant and coupled with the statement of PW.6, who has categorically stated that the cash was indeed handed over to his father by the cashier, the evidence would not support the case of the prosecution. The further discrepancy is the fact that admittedly, the complaint was to the effect that 30% of the compensation amount was to be paid to accused no.1, which was about Rs.9,500/-, but it is inexplicable that an amount of Rs.11,000/- was allegedly paid as bribe, thereby giving rise to a further inconsistency. The learned counsel would also submit that in order to evoke confidence of the cash actually having been demanded and received by the accused, the Lokayuktha Police normally subject such cash to a phenolphthalein test. In the present case on hand, there is no such exercise and therefore, the order of conviction is entirely based on the oral evidence of the complainant, 13 which is again inconsistent with the case of the prosecution and therefore, it would be imprudent to hold that the charge has been proved on the basis of such unreliable evidence.
It is also pointed out that though it is alleged that the bribe amount was demanded and accepted by the accused after the complainant's father and the complainant, along with the accused, came out of the bank and entered a nearby public park, it is also stated that the panchnama of the seizure of such bribe amount was drawn up not at the spot, but at the Lokayuktha's office much later. This is a serious irregularity which goes to the root of the matter and indicates an attempt to orchestrate the sequence of events, though it has not been explained nor has the court below taken exception to such an unusual procedure being followed. The explanation that any such panchnama being drawn up at the public park would have unnecessarily drawn attention of other members of the public and that there would have been room for disorder, is an untenable explanation, 14 as in any given crime, it is necessary to draw up a panchanama at the spot notwithstanding that it may be a public place.
4. The learned counsel for accused No.2, in turn, would submit that the accusation against the said accused is vague and inconsistent. It was alleged that he was acting as an agent for various villagers, whose lands had been acquired and who were awaiting the receipt of compensation in respect of such acquisition from the Corporation and that accused no.1 and he were in active conspiracy to compel such villagers to part their portion of compensation as bribe for expeditious release of the amount, which was illegally withheld by accused no.1, in order to make illegal gain for himself and that a portion of it was also being paid to accused no.2. Though there has been some attempt by the prosecution to tender evidence in this regard, the court below, in its judgment, has not assigned any reasons in holding that the accusations have been established against the said accused. Insofar as 15 the further allegation against accused no.2 that, in order to secure due payment of the bribe and on failure of which, to enforce such payment through the court, as if there was legitimate money transaction, the said accused would generally obtain duly signed blank stamp papers from all such villagers and it was alleged that in this case as well, such blank stamp papers, duly signed by the father of the complainant, had been obtained and the same were seized from his possession. The explanation that the said documents pertained to a genuine transaction has been negated. It is further pointed out that the only reference in the course of the judgment is to be found at Internal Page- 13 of the judgment, where it is stated that out of Rs.11,000/- seized from the accused, 30% of the same was Rs.9,500/- and the remaining was to be paid to accused no.2. This has been narrated by PW.6, the complainant. Apart from the say of the said complainant, there is no material evidence to link the accused no.2 with the alleged offences and therefore, the learned counsel would 16 submit that the case be dismissed against the said accused.
5. The learned counsel appearing for the respondent, on the other hand, would seek to justify the judgment of the court below.
Insofar as the alleged discrepancy in there being initial complaint by the father of the complainant on 19.9.196 and the same not have been taken on record, but the fact of which has been elicited through the Investigation Officer and the further circumstance that it is only the complaint lodged by PW.6 on 20.9.1996 that has been taken into account, does not lead to any infirmity, which would vitiate the proceedings. PW.6, the complainant has, all along, accompanied his father through out the transaction and therefore, was competent to lodge a complaint, which has been taken to its logical conclusion. Having regard to the circumstances of the case, there is no illegality or gross infirmity committed, even if it is to be accepted that it was a second complaint that was brought on record and not the first. 17
Insofar as the inconsistency as regards the person who had received the money from the Cashier at the bank is also not fatal to the case. It is evident on record and it is the consistent case of the prosecution that the money was received by the complainant's father and it is only after coming out of the bank that the entire money was handed over to accused no.1, who, in turn, after retaining Rs.11,000/- had handed over the remaining amount to the father of the complainant, at which time, the complainant had provided the signal for the raiding party to apprehend the accused. As the entire group was present at the Cashier's cabin, namely, accused nos.1 and 2, the complainant and his father, apart from the panch witness, the Cashier having stated that the money was handed over to accused no.1 and given the circumstance that he was tendering evidence after several years, does not vitiate the case of the prosecution. Insofar as the contention that the subject currency notes were not treated with phenolphthalein powder, is also not relevant having regard to the 18 circumstance that cash was to come through the bank and it was impracticable for the officers of the respondent to have also made arrangements with the bank to treat such cash with phenolphthalein powder, before it was handed over.
The learned counsel would further submit that the bona fides of accused no.1 are totally absent and that he was indulging in extracting bribe from villagers whose lands had been acquired, such as, the complainant's father, is evident from the fact that the cheque issued towards payment of such compensation had been prepared much earlier, but had been deliberately retained by accused no.. Though he had received the transfer order transferring him to yet another place and after having handed over the charge to the incumbent in his place, had yet remained in station and was holding the relevant cheques and it was outside the office of the Corporation that he was dealing with the same. This is yet another glaring circumstance to indicate the criminal conduct of accused no.1 and therefore, the 19 learned counsel would submit that the totality of the evidence of the prosecution against the accused has certainly brought home the charges and that the court below was justified in convicting the accused and would submit that there is no warrant for interference by this court.
6. By way of reply, the learned counsel for accused no.1 would point out that insofar as the allegation that accused no.1 had been transferred and was yet seeking to act as if he continued in the present post and was misusing the cheques that were issued in favour of people, whose lands had been acquired, is not a circumstance, in respect of which, evidence had been tendered. The so-called order of transfer has not been marked in evidence. In the face of any such evidence, it would be dangerous to accept the contention of the learned counsel for the respondent and would submit that given the infirmities, the accused no.1 is certainly entitled to acquittal. 20
7. In the above facts and circumstances, insofar as the contention that there is infirmity in the first complaint not having been taken on record, which is said to have been instituted by the father of the complainant, is not a material circumstance that would vitiate the proceedings. It is quite possible that the complaint lodged by the father of the complainant may have been totally unintelligible and in such circumstance, it is always possible to register a second complaint in respect of the same facts and circumstances. This is not impermissible in law. Given the facts and circumstances, it cannot be said that there is any foul play or mischief in this regard.
Insofar as the inconsistency as to the person to whom the cash was handed over by the Cashier is concerned, it is again not a circumstance, which gains much significance. In the light of the fact that there was a large group of persons, including accused no.1 and the complainant present at the Cashier's Cabin and given the time lapse from the date of the incident to the date the Cashier had tendered 21 evidence, the inconsistency can be explained. The absence of the currency notes having been treated with phenolphthalein powder is again not a circumstance that would have much significance, given the fact that the cash has come through the bank and therefore, the investigation authorities being expected to treat such currency notes with phenolphthalein powder in all circumstances, may not be possible. Therefore, it does not lead to any infirmity. Even though it is alleged that accused no.1 had been transferred, but he continued to operate as if he was still posted at the very place, in order to carry on his illegal transactions, unfortunately, is not established by placing cogent evidence. In any event, the totality of the evidence on record would clearly indicate that the charges against accused no.1 has been brought home. However, as rightly contended by the learned counsel for accused no.2, though evidence has been tendered by the prosecution, the court below has not assigned any reason, to hold that the charges against accused no.2 have been established, while the 22 court below has merely referred to the evidence of PW.6 in respect of the involvement of accused no.2 in passing, it is not cogent evidence squarely implicating the said accused. Therefore, it cannot be said that the accusations against accused no.2 have been proved beyond all reasonable doubt. Hence, the court below was not justified in convicting accused no.2 of the offences alleged and he was certainly not a public servant.
Therefore, while affirming the conviction of accused no.1 by the trial court, the case against accused no.2 stands dismissed.
The appeal in Crl.A.1504/2007 stands dismissed and the appeal in Crl.A.1510/2007 stands allowed. The fine amount, if any, paid by accused no.2 shall be refunded to him.
Sd/-
JUDGE nv