Karnataka High Court
State By Lokayuktha Police vs Sri K Shivanna S/O Kariyappa M on 4 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 04TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.81 OF 2009
BETWEEN:
State by Lokayuktha Police,
Bangalore Division, Bangalore. ...APPELLANT
( By Smt. T M Gayathri, State Public Prosecutor )
AND:
Sri. K. Shivanna,
Son of Kariyappa .M,
Aged about 42 years,
Assistant Engineer,
B.O. and M.E.3 Sub Division,
K.P.T.C.L.,
Museum Road, Bangalore. ...RESPONDENT
( By Shri. B.C. Seetharama Rao, Advocate )
*****
This Criminal Appeal is filed under Section 378(1) and (3)
Code of Criminal Procedure, 1973, by the State Public Prosecutor for
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the State praying that this Hon'ble Court may be pleased to grant leave
to file an appeal against the judgement and order of acquittal dated
30.9.08 passed by the Special Judge, Bangalore Urban District,
Bangalore City in Spl.C.C.No. 31/2003 - acquitting the
respondent/accused for the offence punishable under Section 7 and
13(1)(D) read with Section 13(2) of Prevention Of Corruption Act,
1988.
This Criminal Appeal is coming on for this day, the court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent.
2. The appeal is filed by the State representing the Lokayuktha Police, in the following background:
The respondent was the accused before the Trial Court. He was working as an Assistant Engineer at the Branch Office at the Sub- Division, KPTCL, Museum Road, Bangalore. The complainant one D. Rajagopal said to be a partner of the firm which runs a Bar and Restaurant in the name and style of Chinlung Bar and Restaurant, No.30, Residency Road, Bangalore, had alleged that on 10.03.2007, 3 the accused had visited the said Bar and Restaurant and met the cashier one D.T. Raju, whose statement was recorded as CW-4, and asked about the whereabouts of the owner of the premises. At that time, the complainant who was present, responded and the accused had disclosed his name and designation and the accused had further told the complainant that the premises had been provided with a 5 KVA power supply, whereas the consumption was far in excess and therefore, they would be liable to pay huge sums of money as penalty and further, the electricity meter was in the First Floor of the premises which requires to be shifted to the Ground Floor near the entrance. Though the complainant had mentioned that he was paying consumption charges along with penalty, he was served with two notices by the accused and was told to meet the accused in his office. On 22.03.2002, the complainant is said to have met the accused along with Raju and it was reiterated by the accused that he would have to pay huge amounts as penalty and that it was possible to compromise the situation, if he could co-operate with the accused. Even though 4 the complainant had insisted that since he was paying the consumption charges along with penalty and there was no need for him to compromise with the accused, the accused told him that he had to pay Rs.10,000/- for excess electricity consumption and Rs.20,000/- for shifting the electrical meter from the First Floor to the Ground Floor. The complainant had mentioned that he was in financial difficulties and was unable to pay so much money and that he would pay Rs.4,000/-. The accused asked the complainant to bring the money at 4.00 p.m. Accordingly, on the same day, the complainant visited the accused along with Raju and had paid him Rs.2,000/- and had assured him that the remaining amount would be paid later. Thereafter, it is alleged that the accused repeatedly called upon the complainant on telephone demanding the remaining amount. Since the complainant was not willing to pay the bribe amount to the accused, he lodged a written complaint as per Exhibit P11 before the then Deputy Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore, who was examined as PW-3 at the trial. He in 5 turn, had called upon one S.R. Vijayakumar, the Police Inspector, City Division, Karnataka Lokayukta who was examined as PW-6 at the trial and gave him the written complaint and directed him to take up further investigation. It is thereafter that a case was registered in Crime No.12/2002 and the First Information Report was dispatched to the Jurisdictional Court. PW-6 thereafter secured the presence of two others PW-1 K. Pampapathi and PW-5 Mubarak Ahamed, who were Government officials, to act as the shadow witnesses to assist him in the trap proceedings. They were introduced to the complainant and instructions were given as to the manner in which the trap would be carried out. The entrustment mahazar was drawn up pursuant to the preparations being made for such raid being carried out. It thereafter transpires that the entire raiding party went to the office of the accused at about 5.00 p.m. and the vehicles in which they reached there were stopped at a distance of about 100 feet from the office of the accused. PW-6 once against instructed the complainant, PW-5 and PW-1 about their role and the manner in which the trap was to be effected. It was 6 the case of the complainant that he along with PW-1 entered the office of the accused and sat on the chairs put up in front of the table of the accused. The complainant broached the subject of notices issued to his hotel. The accused had assured him that he need not worry about the notices and further asked him whether he had brought the remaining bribe amount. The complainant having replied in the affirmative, the accused had gestured to be given the same. The complainant had taken out the tainted currency notes, which had been tainted with phenolphthalein powder, and handed it over to the accused. The accused is said to have received the money with his right hand and kept the money on the left side shirt pocket and told the complainant that he may leave and need not worry about the notices, whereupon the complainant had come out of the office room of the accused and signalled the raiding party, by combing his hair. Accordingly, the raiding party had descended on the accused and apprehended him and washed both his hands with sodium carbonate solution prepared in two separate bowls. Since the solution used, to 7 wash his right hand, turned pink in colour, the same was sealed and marked to be produced in evidence before the court. Thereafter, PW- 6, the Investigating Officer had asked the accused to produce the bribe money, after which the money was removed from his left side shirt pocket and produced before PW-6. On verification of the serial numbers of the currency notes, it was noticed that the same tallied with the serial numbers which had been noted down in the entrustment mahazar. Thereafter, the shirt which the accused was wearing was also removed and the pocket portion washed in Sodium Carbonate solution, which turned pink in colour, confirming that the tainted money had come from the pocket of the accused, which in turn was sealed and marked. The file pertaining to the notices issued to the complainant's Bar and Restaurant was also obtained and photocopies made of the same, which were in turn marked in evidence. It is in this background that proceedings were initiated against the accused of abusing his position as a public servant demanding and accepting the illegal gratification with a motive for showing an official favour and it 8 is in that context, after completion of investigation, a charge-sheet having been filed against the accused for 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 'PC Act' for brevity), that the accused had entered appearance before the Court and had pleaded not guilty and claimed to be tried.
The prosecution thereafter examined eight witnesses and marked Exhibits P1 to P22 and MOs 1 to 12. On the basis of the material that was produced before the Court and the rival arguments, the court had framed the following points for consideration:
"1. Whether the prosecution proves beyond reasonable doubt that during the year 2002 the accused was public servant working as Assistant Engineer, B.O. & M.E.3, Sub-Division, K.P.T.C.L, Museum Road, Bangalore and that on 22.03.2002 the accused in his office demanded and accepted Rs.2,000/- as gratification other than legal remuneration from the complainant and again on 5.4.2002 at about 5.20 p.m the accused demanded and accepted Rs.2,000/- as gratification other than legal remuneration from the complainant Sri. D. 9 Rajagopal as a motive or reward for showing an official favour namely for not imposing penalty in respect of the notices issued to him for excess consumption of electricity and also for shifting of electrical meter from first floor to ground floor and thereby the accused committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988?
2. Whether the prosecution further proves beyond reasonable doubt that the accused being public servant as stated above by corrupt or illegal means or by otherwise abusing his position as a public servant, obtaining for himself Rs.2,000/- as pecuniary advantage on 5.4.2002 at about 5.20 p.m. in his office without public interest from the complainant Sri. D. Rajagopal and thereby he committed a criminal mis-conduct which is an offence punishable under Section 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988?
3. What order?"
The Court below has held Points 1 and 2 in the negative and has acquitted the accused. It is that which is under challenge in the present appeal.
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3. The learned counsel for the petitioner would take this Court through the record to demonstrate that the court below has proceeded to dismiss the complaint on certain infirmities that were indicated by the defence. However, the court below has negated the positive evidence that was also available to bring home the charges against the accused and this has resulted in a miscarriage of justice and seeks to highlight those aspects of the matter.
4. However, as rightly pointed out by the learned counsel for the accused - respondent herein, the court below has found the following infirmities in holding that the charges have not been proved beyond all reasonable doubt, as was necessary for bringing home the charges.
Firstly, the court below has found that though the case of the prosecution was that the accused had visited the restaurant of which the complainant was a partner, on 10.03.2002 and had observed that the restaurant was consuming power much in excess of the 11 permissible load and further, that the meter was to be shifted from the First Floor to the Ground Floor or otherwise, it attracted huge penalty, and had issued notices on the complainant in this regard and further, had indicated that huge amounts would have to be paid unless the complainant took certain steps as directed by him. He demanded that the entire process would cost about Rs.30,000/-, to which the complainant had mentioned that he was not in a position to pay such a huge amount and that he could pay Rs.4,000/-. It was further found by the court below that admittedly, the complainant along with one Raju had visited the office of the accused on 22.03.2002 and had paid him a sum of Rs.2,000/-. This fact has not been established by the examination of the independent witness Raju, for reasons best known to the prosecution, though his statement has been recorded as CW-4.
Further, insofar as the trap itself is concerned, PW-1 who was the shadow witness and is said to have accompanied PW-8, the complainant, at the time the tainted money was to be handed over to the accused, has tendered evidence, which is totally inconsistent with 12 his statement. In that, he had categorically stated that the accused had not demanded any amount from the complainant and further, that though both his hands were washed in Sodium Carbonate solution, the liquid had not changed colour and even though the shirt of the accused had been removed and washed, the solution had not changed colour and further the court has also found that the evidence of the complainant was the sole evidence on the basis of which the prosecution had sought to establish the case of the complainant and since the complainant's statement itself was inconsistent with the mahazar, the court below has held that in the light of such inconsistencies, a serious doubt is cast on the manner in which the case of the prosecution is sought to be made out and that, it is imperative in a case of this nature, to establish that there was a demand and the accused had obtained such illegal gratification for a favour to be extended to the complainant and in the absence of corroboration of the evidence of the complainant, it could not be held that the charge was proved beyond all reasonable doubt. In the first 13 instance, the payment of Rs.2,000/- itself not having been established and the further payment of the tainted money also being ridden with such inconsistencies insofar as the statement of PW-1 and the inconsistent statement of the complainant himself is concerned, the court below has also taken note of the evidence on behalf the accused, whereby an Assistant General Manager has been examined to state that the accused possessed a blemishless record and in fact, he has been awarded with citations for his exemplary work in his career. Therefore, the prosecution not having made out a case which is free of any kind of doubt, it cannot be said that the charges were proved beyond all reasonable doubt and accordingly, acquitted the accused for the offences punishable under the above referred provisions of the PC Act.
Therefore, no matter the positive evidence that is sought to be referred to by the learned counsel for the appellant, this Court would have to agree with the reasoning of the Trial Court. In that, there are 14 serious infirmities which cannot be ignored and overlooked in accepting the case of the prosecution, especially in a case of such seriousness sought to be made out against a public servant. Accordingly, the appeal is dismissed.
Sd/-
JUDGE KS