Karnataka High Court
Mehaboobsab S/O Haseemsab Mydur, vs The State Of Karnataka on 14 July, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.2785/2011
BETWEEN:
MEHABOOBSAB
S/O HASEEMSAB MYDUR
AGE: 59 YEARS
OCC: DEPUTY TAHSILDAR
HAVERI TALUKA OFFICE
DIST: HAVERI
... APPELLANT
(BY SRI.SRINAND A.PACHCHAPURE, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY POLICE INSPECTOR,
KARNATAKA LOKAYUKTA POLICE WING,
HAVERI, NOW REP.BY SPP
... RESPONDENT
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 12.08.2011
PASSED BY THE SPECIAL JUDGE, HAVERI IN SPECIAL (LOK)
CASE No.1/2005, FOR THE OFFENCE PUNISHABLE UNDER
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SECTION 7 & 13(1) (d) R/W SECTION 13(2) OF PREVENTION OF
CORRUPTION ACT, 1988.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant/accused No.1 being aggrieved by the judgment and order of conviction dated 12th August 2011 passed by the Special Judge at Haveri in Special (Lokayukta) Case No.1/2005. By the said judgment and order passed by the learned Special Judge accused No.2 is acquitted of the offences punishable under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, and accused No.1 who is the appellant herein was convicted for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The appellant herein challenged the legality and correctness of the judgment and order of conviction passed by the trial Court on the grounds as mentioned in the appeal memorandum. :3:
2. Brief facts of the prosecution case as per complaint averments (Ex.P-77) that, one Maylareppa (PW-
5) is the complainant in this case. He lodged the complaint on 21.12.2004 before the Police Inspector, Karnataka Lokayukta, Haveri, wherein complainant has stated that, he is having landed property at Kancharagatti village in Haveri Taluka bearing R.S.No.80/5B-5, measuring 20 guntas and in the said landed property he has constructed house for their residence, so also he has constructed the shed abutting to the said house for cattle. He got constructed the said house one year prior to filing of the complaint and he has not taken any prior permission for construction, in that connection village elders told and advised to the complainant that, in order to construct the house he has to get land converted into the non- agricultural land and asked him to give the application to the Tahashildar office. Accordingly in order to get the 20 guntas of land in Sy.No.80/5B-5 into the non- agricultural land, complainant gave the application on 08.12.2004, along with the said application he has annexed the :4: property extract, mutation entry and all other documents which are necessary in that connection. He personally met the sheristedar-Maydoor, that is the petitioner herein who is in-charge of the lands belonging to Kancharagatti village and when he enquired, at that time the accused No.1 questioned the complainant with whose permission he has constructed the house, he threatened him and asked him to pay Rs.2,000/- as bribe amount and he will prepare the file by putting a note for the conversion of the said land getting the signature of the Tahasildar and he will send it to the office of the Assistant Commissioner. At that time the complainant told the appellant herein that firstly it is to be converted into the non-agricultural land and thereafter he has to come and pay Rs.2,000/-. On 21.12.2014 morning at 11-30 p.m. complainant went to the Tahasildar office and he met Sheristedar-Maylareppa the appellant herein and he enquired with conversion of his land to non- agricultural land, at that time the appellant asked the complainant whether he brought the bribe amount of Rs.2,000/-, complainant in turn stated that, he has not :5: brought it because he has to get the amount by presenting the cheque, for that the appellant herein told to the complainant that, he has to pay money and the appellant herein called one Mahadevappa/accused No.2 the clerk, who was working in the office of the accused No.1 and after talking with the appellant herein, directed the complainant to pay the bribe amount of Rs.2,000/- into the hands of Mahadevappa/accused No.2 and it is also told to the complainant that, in case he has not paid bribe amount, then the file for conversion of the non-agricultural land will not be sent to the office of the Assistant Commissioner. Accordingly the complainant met with Mahadevappa-accused No.2 and he also asked whether complainant has brought Rs.2,000/-, for that complainant told that, he has not brought and for that accused No.2- Mahadevappa stated to the complainant to immediately bring Rs.2,000/- and give it to him and then will they keep the file ready and he will send it. The complainant enquired with accused No.2 whether he has to pay any other fees and accused No.2 told that no other fee has to :6: be paid for the present and told that at the time of KJP by the ADLR Office, they will issue the notice for conducting the survey at that time he has to pay the fees and after issuing notice from the Assistant Commissioner Office, then he has to pay the fees as ascertained and same will be paid later. As stated by accused No.1, accused No.2 told the complainant that he has to pay Rs.2,000/- of bribe amount, then they will keep the file ready and they will send it to the office of the Assistant Commissioner, then the complainant told that, he will bring the amount in the noon time and he returned back. As the complainant was not willing to pay the bribe amount to accused Nos.1 and 2 and in order to take legal action against both of them, he approached the Lokayukta Police stating that he has already brought the bribe amount.
3. Thereafter the Lokayukta police secured the panch witnesses, they have also registered the FIR the pancha witness were introduced to complainant then they all were explained about conducting the entrustment :7: mahazar and accordingly entrustment mahazar was conducted in their presence as per Ex.P.1 and the Lokayukta Inspector explained about the chemical reaction of the phenolphthalein powder with sodium carbonate solution that it will turn into pink colour. Thereafter they all were instructed about their role to be played as mentioned in the entrustment mahazar Ex.P-1.
4. Thereafter-wards they left to go to the office of the accused No.1 in evening at about 4.55 p.m. they went there and as instructed the accused No.1 and the shadow witnesses went inside the office of the accused No.1. After some time the complainant came back and gave the pre- arranged signal, then that all rushed to the office of accused No.1 and 2 apprehended them and conducted the trap-mahazar proceedings as mentioned in the Ex.P-3. After completion of investigation charge sheet was filed against accused No.1 and 2 for the said offence.
5. The Special Judge after hearing both sides framed the charge against the both accused persons for :8: the alleged offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act -1988 then the matter was fixed for trial.
6. The prosecution in order to prove its case, in all examined 12 witnesses as PW-1 to PW-12, produced the documents as per Ex.P-1 to Ex.P-86 and got marked material objections MO-1 to MO-15 and closed his side. On the side of the defence no witnesses examined, but the document Ex.D-1 got marked during course of cross- examination of the prosecution witnesses.
7. After hearing both sides and considering the merits of the case the learned Special Judge acquitted the accused No.2 for the said charges and convicted the accused No.1 holding him guilty for both the offences, hence the accused No.1/appellant is before this Court in this appeal.
8. Heard the arguments of the learned counsel appearing for the appellant/accused No.1 and also the :9: learned Special Public Prosecutor appearing for the respondent-Lokayukta.
9. Learned counsel appearing for the appellant/accused No.1 during the course of arguments made the submission that, there is no proof of demand and acceptance of the bribe amount of Rs.2,000/- by the appellant/accused No.1 from the complainant. Learned counsel made the submission that complainant, on 08.12.2004, is said to have given an application for conversion of his land to non-agricultural land. He made the submission that this application was not presented before the appellant/accused No.1, but materials goes to show that this application was filed by the complainant in the Tahasildar office and accused No.2 received the same on the next date i.e, 09.12.2004. Learned counsel further made the submission that, till 21.12.2004 when the complainant approached the appellant/accused No.1 at 11- 30 a.m. he was not at all knowing about the said application filed by the complainant. Hence the counsel : 10 : made the submission that, when the accused No.1 was not at all having the knowledge about complainant filing such an application, the question of demanding bribe amount does not arise at all. The learned counsel further made the submission that, looking to the evidence of the prosecution witnesses and more particularly the evidence of PW-3 Tahasildar it is very clear that, this appellant/accused No.1 had already put up a note and sent the file to the office of the Tahasildar on 20.12.2004 itself that is one day earlier to the alleged trap on 21.12.2004. Hence it is his submission that, this itself clearly goes to show that, the accused No.1 never demanded the bribe amount of Rs.2,000/- from the complainant and complainant also never approached accused No.1 directly till 21.12.2004. Hence he submitted that, the accused No.1 has been falsely implicated in the case though there is no material about the alleged demand and acceptance of the bribe amount of Rs.2,000/-. He also made the submission that, on 18.12.2004 accused No.1 seen the application and on 20.12.2004 itself, he recommended for the grant of : 11 : conversion order. In this connection, learned counsel drew the attention of this Court to Ex.P-30 and so also the evidence of PW-3, Tahasildar. He made the submission, even if in the complaint Ex.P-77 there is allegation that the accused No.1 demanded bribe amount from the complainant for attending the said work, but there is no corroboration from the independent material about said alleged demand. It is also his submission that, the explanation (Ex.P-27) of the present appellant/accused No.1 was obtained by threat given by the Lokayukta Police stating that, the proceedings have been already photographed, and if they did not gave the explanation they will have to face the consequences. Learned counsel also made the submission that, even the explanation in Ex.P-27 does not affect the defence of the appellant/accused No.1. He submitted that, what is written in the explanation is that complainant himself had paid that amount stating that he has to pay Rs.2,000/- to the Government towards conversion charges even in future after allowing his application. Hence counsel made the : 12 : submission that, the appellant/accused No.1 has made out all probable defence in the case which also goes to show that, he has not involved in the alleged offences. About the tape-recorder, learned counsel made the submission that, when it was given to the complainant with specific purpose and instructions by the Lokayukta Inspector to keep on recording the conversation going on in between complainant and accused, then he has to handover the same to the Lokayukta Inspector, what is the recorded in the tape-recorder, was not at all played and even Court also does not know what is the conversation. Though the tape-recorder was seized by the Lokayukta Inspector from the custody of complainant PW-5, it was not sent to an expert to ascertain the voice and the conversation in the said tape-recorder. Hence he submitted that, adverse inference can be drawn because prosecution has not sent the tape recorder for getting expert's opinion. Hence he made the submission that, looking to the materials placed on record a reasonable doubt arises as to the case of the prosecution. The learned Special Judge has not at all : 13 : considered all these aspects of the materials, which go to the root of the prosecution case, and thereby the learned Special Judge, wrongly read the evidence both oral and documentary, proceeded to convict the accused No.1, though on the basis of the same evidence adduced by the prosecution, he acquitted accused No.2. Hence counsel submitted that, the judgment and order of conviction as against the present appellant/accused No.1 is illegal and it is not sustainable in law. Hence submitted to allow the appeal and set aside the judgment and order of conviction passed as against the appellant herein and to acquit the appellant for all the charges leveled against him.
10. In support of his contentions the learned counsel appearing for the appellant/accused No.1 relied upon the following decisions:
(i) 2015 CRI.L.J. 4670 P.Satyanarayana
Murthy v. Dist. Inspector of Police and
Another.
(ii) 2006 I Supreme Court Cases 401,
T.Subramaniyan v.State of Tamilnadu.
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(iii) CRL.A. 2778/2013, Shivappa Muddappa
Karjagi v. State of Karnataka.
(iv) AIR 1979 SC 1408, Suraj Mal v. The State
(Delhi Administration).
(v) AIR 1979 SC 1455, Man Singh v. Delhi
Administration.
(vi) 2011 (1) Acquittal 381 Bombay, State of
Maharastra v. Shivram.
(vii) CRLJ 2000 0 2377, S.Suryanarayana Rao
Vs. State of Karnataka.
11. Per Contra, the learned Special Public
Prosecutor representing the respondent-Lokayukta Police, during the course of his arguments, sofar as demand of bribe amount is concerned drawing the attention of this Court to document at Ex.P-77 the complaint, he made the submission that the application seeking conversion of his land into non-agricultural land it was given on 08.12.2004 itself. Learned Special Public Prosecutor made the submission that, looking to the complaint version there is a clear cut mention in the complaint at Ex.P-77 and in that : 15 : regard, he met the accused No.1-Sheristedar and enquired about the conversion of his land into the non-agricultural land. Hence, it is his submission that this evidence of the complainant himself and the averments in the complaint clearly go to show that after filing the application on 08.12.2004 the complainant met even appellant/accused No.1 personally and enquired about conversation of his land.
12. Learned Special Public Prosecutor further submitted that, the evidence of PW-5 the complainant is also corroborated by the shadow witness PW-1, wherein he also clearly deposed that, in his presence, accused No.1 asked the complainant to pay Rs.2,000/- of bribe amount otherwise his application will not be processed and it will not be sent to the office of the Assistant Commissioner for passing the final order. He also submitted that, the evidence of PW-1 is also to the effect that, he was also called and in his presence accused No.1 demanded the amount from the complainant and then told to the : 16 : complainant to pay the amount into the hands of accused No.2-Mahadevappa, who was working as a clerk in the office of the Sheristedar. Hence, the learned Special Public Prosecutor made the submission that, the averments in the complaint, oral evidence of PW-1, the shadow witnesses, PW-5 complainant clearly go to show that, there was a demand for the bribe amount of Rs.2,000/- from the appellant herein regarding the work to be attended by the appellant as well as accused No.2 is concerned. Learned Special Public Prosecutor also refers the evidence of Tahasildar PW-3 and made the submission that, even if it is assumed that on 20.12.2004 itself, the office note was put up by the appellant herein and the file was sent to the Tahasildar office; the evidence of Tahasildar is very clear that till everything is over and the file is ultimately sent to the office of the Assistant Commissioner, it is their responsibility. Hence this evidence of PW-3 clearly goes to show even on 21.12.2004 work to be attended by the appellant was still pending in their office. Hence he submitted that, because such work is pending that was the : 17 : reason for accused No.1 demanded bribe amount of Rs.2,000/- from the complainant. Counsel further made the submission that, whether the application was directly presented to accused No.1 or it was given in the office of the Tahasildar, learned Special Public Prosecutor made the submission that, complainant being a villager, he does not know all these technicalities, he has stated that he has given the application in the office, so also he met with the accused No.1. Hence he submitted that, looking to this evidence of PW-1, PW-5, PW-3-Tahasildar, averments in the complaint and the application-Ex.P.59 they clearly goes to show that, there was demand for bribe amount of Rs.2,000/- sofar as the acceptance of the bribe amount is concerned learned Special Public Prosecutor made the submission that, accused No.1 caught red handed, when he received the bribe amount from the complainant and the said amount of Rs.2,000/- was recovered from his possession in the presence of pancha witnesses. And the detailed mahazar proceedings were drawn as per Ex.P-3. Hence he submitted that, even looking to the explanation : 18 : of the accused No.1/appellant it will not come to the defence of the accused, in view of the evidence of PW-3 Tahasildar that, the complainant need not pay any such amount in connection with his application seeking conversion of the land. Hence he submitted that, when that is so and when amount is recovered from his possession, presumption will have to be raised as per Section 20 of the Prevention of Corruption Act, and it is for the accused No.1 to rebut the said presumption. Learned Special Public Prosecutor submitted that, no such rebuttal evidence has been placed by accused No.1 in this case. Hence he submitted that, the explanation Ex.P-27 also establishes the case of the prosecution regarding acceptance of the bribe amount of Rs.2,000/-. It is his further submission that, though during the course of cross- examination of the prosecution witnesses, Ex.D-1 was got marked which shows that his earlier application came to be rejected by the Tahasildar in this connection, he made the submission that, when the earlier application was rejected by the Tahasildar then the question of any enmity between : 19 : the complainant and the accused No.1 does not arise at all. Regarding the tape-recorder, the learned Special Public Prosecutor made the submission that, as it was not properly audible, it was not send to the FSL to get experts opinion regarding the conversation. He also made the submission that, the case of the prosecution is also supported by the experts opinion, FSL report-Ex.P-85 and the Ex.P-86. He submitted in this regard that the experts opinion that, the hand washof both the hands of the each accused turns into the pink colour. It also consistent with the case of the prosecution and lastly he made the submission that, in the 313 statement when there is opportunity to appellant/accused No.1 herein to explain why he received the said amount, he has not stated anything about the same. Hence all these materials were properly appreciated by the learned Special Judge and rightly comes to the conclusion that, prosecution proved its case beyond all reasonable doubt, sofar as accused No.1 is concerned, accordingly he was held guilty and he was punished. Hence he submitted that, there is no illegality, : 20 : nor there is any perverse view taken by the court below by the said judgment and hence appeal be dismissed confirming judgment and order of conviction passed by the learned Special Judge.
13. Sofar as the decisions relied upon by learned counsel appearing for the appellant/accused No.1, learned Special Public prosecutor made the submission that, the decisions will be as per factual aspects involved in those cases there cannot be hard and fast rule about all these things. Hence he submitted that, the decisions will not come to aid and assistance of the case of the appellant/accused No.1.
14. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the learned Special Judge, sofar as it relates to appellant/accused No.1, oral evidence of the prosecution witnesses PW-1 to PW-12, documents produced by the prosecution, the decisions relied upon by learned counsel for the appellant/accused No.1 which are referred above. : 21 :
15. So also considered the submission made by the learned counsels on both sides at the bar. Now coming to the case of the prosecution regarding the demand and acceptance of the bribe amount is concerned.
16. I have perused the averments in the complaint Ex.P-77 which is dated 21.12.2004 wherein it is mentioned that, on 08.12.2004 he has submitted his application annexing the necessary documents and he has also mentioned in the complaint Ex.P-77 in that connection, he also met Sheristedar-Maydur, and enquired about the same, and he further mentioned in the complaint that, at that time he was told by the accused No.1 with whose permission he had made construction on the land and he had to pay Rs.2,000/- bribe amount. Looking to the very contents of this complaint whether the complainant met the Sheristedar on 08.12.2004 date of filing application itself or on some other day there is no specific mention in the complaint and it is mentioned that, personally met with accused No.1. But looking to the evidence of PW-3 : 22 : Tahasildar in this connection, wherein he has stated in the cross-examination and he has admitted the suggestion after filing the said application on the very next day itself, it was sent to the office of the Deputy Tahasildar for taking further action in the matter as per Ex.P-67 the witness admitted this suggestion as correct. He has also admitted that, the Deputy Tahasildar after enquiring on 10.12.2004 he sent back the file as per Ex.P.58, this suggestion was also admitted by the witness PW-3. The further evidence of PW-3 goes to show that, after getting the report as per Ex.P-30 in connection with the application of the complainant accused No.2 put-up the note and accused No.1 recommended and even he has also signed the said recommendation and this suggestion is also admitted by PW-3 as correct. He further deposed that their work is only to make a recommendation to the office of the Assistant Commissioner and on 20th itself he has given the recommendation and permission for sending it to the Assistant Commissioner Office. He admitted the further suggestion after receiving the said application till the date : 23 : of 20.12.2004, the accused persons have attended all the work in connection with the same.
17. The accused persons have attended all the work in connection with the same. He admitted the said suggestion as correct. Looking to this evidence of the Tahsildar, there is no mention in his evidence also directly the application was given to the appellant/ accused No.1 herein.
18. Prosecution wanted to prove the demand and acceptance of the bribe amount through the evidence of PW1-the shadow witness and PW5-the complainant in this case. It is no doubt true looking to the oral evidence of PW5 and PW1, they have deposed to the effect that on that day in the evening at 4.55 p.m. the raiding party went towards the office of the accused No.1, then the complainant went inside the office of the accused No.1 and the shadow witness-PW1 was waiting nearby the office of accused No.1. The further evidence of both the witnesses goes to show the accused No.1 asked the complainant : 24 : whether he has brought the bribe money, when the complainant told that he has brought the bribe amount, accused No.1 asked to pay the same and accordingly, complainant gave the amount into the hands of the accused No.1. The evidence of both these witnesses further goes to show accused No.1 after receiving the amount through his right hand kept it in the tray on the table then as accused No.2 was also present by that time he gave it into the right hand of accused No.2, accused No.2 received it then he returned back to the accused No.1 stating that accused No.1 himself can retain it. Then accused No.1 counted the tented currency notes by both of his hands and then he kept it into the left side shirt pocket. Therefore, with this evidence of PW1 and PW5, the prosecution wanted to prove regarding the acceptance of the bribe amount of Rs.2,000/- by accused No.1 from the complainant-PW5. Even the prosecution relied upon the trap mahazar proceedings conducted as per Ex.P3 and it is deposed by both the witnesses that the hand wash of accused No.1 both separately were taken in two bowls : 25 : containing sodium carbonate solution and the solution in the bowls turns into pink colour that was secured in separate bottles. So also both hand wash of the accused No.2 also separately taken in two bowls and similarly the solution turns into pink colour and that was also secured in two separate bottles. Therefore, by this process also the prosecution's contention that, it also supports the case of the prosecution about the receipt of the bribe amount of Rs.2,000/- by both the accused. The contention of the prosecution that if they have not received the amount then there was no need of their hand wash turning into pink colour. In this connection, I am referring to the evidence of Investigation Officer-PW8. In the cross-examination by the learned counsel for accused No.2 on Page No.15 of his deposition he denied the suggestion that complainant has not at all given such complaint to them and he was given such complaint only against accused No.1 the said suggestion has been denied by the witness. Then he accepted the next suggestion that if a person touches the notes which were smeared with phenolphthalein powder : 26 : and when the hand was is taken then there will be change in the colour. When it was asked to the witness that if such notes were handled by one hand and in which had such notes were there and when the hand wash hand taken that hand wash only will be turning to the colour. For this the witness answered if another hand came in contact with such hand of the person then there is a possibility of change of the colour of that another hand also. With this evidence of the Investigation Officer let me come to the trap mahazar proceedings under Ex.P3. The trap mahazar is a basis for the case of the prosecution, whatever that has happened in their presence same thing will be reduced into writing by the Lokayukta Police in the presence of panch witnesses and looking to this trap mahazar on Page No.1 in the last paragraph, it is mentioned evening at 4.55 p.m. the complainant came out of the office of the accused person and by standing on the steps infront of the said office and with the help of shawl with him he gave the prearranged signal that the accused has also received the bribe amount. Immediately the Investigation Officer panch : 27 : witness Rajendra Kulkarni and the staff rushed to the place as told by the complainant then they all went inside the chamber wherein the accused No.1 was working and after showing the person who was sitting the complainant told that he himself is M.H.Maidur, Sheristedar, who received Rs.2,000/- bribe amount from him for attending his work of conversion of his land as non-agricultural land. Immediately the Investigation Officer shown his identity card stating that he is the Lokayukta Police Officer and he apprehended M.H.Maidur after following the procedure. Thereafterwards the complainant shown another person stating that he is one Mahadevappa i.e. accused No.2 and also as told by the accused No.1 Sheristedar demanded the bribe amount from him and the Investigation Officer apprehended that accused No.2 also. This averment made in the trap mahazar is very important in appreciating the case of the prosecution so also the oral evidence of PW1 and PW5. This goes to show that immediately after entering into the office of the accused No.1, he was apprehended and immediately the accused No.2 was also : 28 : apprehended in the said office. Even there is no mention by the complainant when he paid the bribe amount of Rs.2,000/- by which hand he received the said amount whether right hand or left hand. This is why because is it having its own significance and having a reference to the chemical process which is said to have been conducted for getting the hands of both the accused washed in the sodium carbonate solution as alleged by the prosecution. During the course of oral evidence of PW1 and PW5, they have deposed that the accused No.1 after receiving the amount through his right hand kept it in the tray on the table then called accused No.2, gave it into his hands and in turn accused No.2 again returned into accused No.1 stating that it can be with accused No.1 and then accused No.1 counted the notes then he kept it in his left side shirt pocket. About all these process absolutely there is no mention by the panch witnesses in the trap mahazar on Page No.2. It is no doubt true if this trap mahazar is taken on Page No.5 of the said trap mahazar there is a mention about these process, but looking to the sequences of the : 29 : events that has taken place under Ex.P3 trap mahazar proceedings immediately it was not done and it was not stated by the witnesses what has happened immediately after they entered into the chamber of the accused No.1. Even if for the sake of appreciation of the case of the prosecution, it is taken that what is stated in the trap mahazar on Page No.5 in the second paragraph is appreciated. No doubt there is a mention about paying the amount to accused No.1, he receiving it through his right hand keeping it in the tray on the table, thereafter accused No.1 giving that amount into the hands of accused No.2 and accused No.2 took that amount through his right hand and after seeing the amount he again returned it into accused No.1 stating that he can keep it with him and the accused No.1 receiving those notes from accused No.2 and behind the table he counted from both his hands then he kept those notes in the left side shirt pocket of accused. If this is taken into consideration, this story is not by either PW1 or PW5. This say is as per the voluntary statement said to have been given by accused No.2 and the trap : 30 : mahazar proceedings is very crystal clear that after completing the trap mahazar proceedings taking the hand wash of both then seizing the documents mentioned at Sl.No.1 to 14. Thereafterwards when they asked the persons to offer their explanation at that time accused No.2 in his explanation narrated about all these things. So it clearly goes to show till then i.e. till the accused No.2 gave his explanation narrating all these things about handling of the notes none of the prosecution witnesses and the police officers have spoken about these things and they were not knowing about it. Therefore, the question will arise when immediately they entered into the office of accused No.1 when it is not told by the complainant that accused No.2 also received the amount from accused No.1 what made the Lokayukta Police to take the hand wash of accused No.2 also at that moment. This itself clearly goes to show that even without there being any material without any sort of reasons the hand wash of accused No.2 are also said to have been taken place by the Lokayukta Police. Even if it is accepted that it has happened as told : 31 : by accused No.2 in his explanation Ex.P28. Still whether it corroborates the case of the prosecution is again a point to be considered. Even looking to the explanation of accused No.2, it is only accused No.1 who said to have counted the notes behind the table by both of his hands, but not the accused No.2. Accused No.2 received the amount by his right hand by seeing the amount again he returned back to accused No.1. If that is so where is reason that his left hand in the solution also turns into pink colour. This itself falsifies the entire case of the prosecution and during the course of cross-examination, it is consistent suggestion made by the learned counsel appearing for accused No.1 and 2 that no such trap mahazar proceedings were taken place and those documents are created by the Lokayukta Police. When that is so great responsibility is casted on the prosecution witnesses to clarify about all these things and how there is a change of the colour of the left hand wash of the accused No.2. Now it is the case of the prosecution that the accused No.1 kept the notes in his left side shirt pocket and the said shirt was also seized and the portion : 32 : of the pocket it was also washed in the sodium carbonate solution it also turns into pink colour. In this connection, let me refer to the report submitted by the F.S.L. as per Ex.P85. This shirt is marked while sending to F.S.L. as Article No.11 and in the F.S.L. report so far as Article No.11 is concerned, there is no mention on Page No.3 of Ex.P85 regarding the presence of both phenolphthalein and the sodium carbonate solution this results column only the Item No.5, 7, 8, 10, 12 and 13 are mentioned and below that it is specifically mentioned by the expert persons only phenolphthalein is detected in the articles bearing No.1, 9 and 11. The evidence of PW8 the Investigation Officer goes to show wherein he has deposed that as there is a defect in Ex.P85, he sent it back to the FSL and get it corrected under Ex.P86. So this also creates a reasonable doubt in the mind of the Court whether really when the pocket portion of the shirt of the accused No.1 was washed in sodium carbonate solution whether it also turns into pink colour. In view of the evidence of the Investigation Officer himself that the report Ex.P85 was defective and he get it : 33 : corrected under another report Ex.P86. Therefore, even this chemical process said to have been conducted under the trap mahazar proceedings also not coming to the help of the prosecution case to show regarding the receipt of the bribe amount of Rs.2,000/- which notes are tainted with powder. It is true in the explanation under Ex.P27, the accused No.1 has stated and made it clear that when his application was processed on 20th itself then the complainant told him anyhow he has to pay conversion charges and asked the accused No.1 to kept the notes into his possession. Even if it is so it is the probable defence of the accused No.1. But if the other materials on record is appreciated in view of above matter which is discussed above that possibility of complainant giving this amount into possession of accused No.1 towards the conversion charges also cannot be completely ruled out.
19. The case of the prosecution that in the Lokayukta Office after completing the trap mahazar proceedings as per Ex.P1 the Lokayukta Officer gave the : 34 : Tape-recorder to the complainant to be kept it with him giving a specific instruction that when he entering to the office of the accused No.1, he has to kept the Tape- recorder on so as to record the conversation between the accused No.1 and the complainant. This is object of giving Tape-recorder and it goes to show the Lokayukta Police wanted to have more corroborative pieces of evidences to the oral evidence of complainant as well as the shadow witnesses and it is the evidence of the prosecution witnesses accordingly the Tape-recorder was on when they entered into the office of the accused No.1. The evidence of PW1 and PW5 goes to show that the Tape-recorder conversation was played in their presence and the accused No.1 demanding this amount of Rs.2,000/- was recorded in the Tape-recorder conversation. When that is so the Tape-recorder ought to have been referred to the experts opinion to get the conversation and produce the material before the learned Sessions Judge. But the evidence of the Investigation Officer is otherwise he deposed in his evidence that as the conversation was not clearly audible : 35 : he did not send it to the experts' opinion. This evidence of the Investigation Officer is contrary to the evidence of PW1 shadow witness and PW5 the complainant. It is no doubt true the prosecution can prove its case on the basis of evidence of PW1 and 5 and with other materials placed on record and there is no necessity that it has to be proved even by electronic process, but once it is introduced by the prosecution that it was given to the complainant then it has to be placed before the Court and though the Tape- recorder has been produced and marked as M.O.No.13 in the case, it was not played before the learned Special Judge to know what is the conversation recorded in the Tape-recorder and when the evidence of the prosecution witnesses itself is contrary regarding the said conversation whether it is clearly audible or not audible. In that case it ought to have been referred to experts' opinion. Therefore, non-referring of the Tape-recorder to get the experts' opinion and as per the defence of the accused that there is no such conversation recorded in the Tape-recorder, the Court has to draw the adverse inference as against the : 36 : case of the prosecution as per Section 114(G) of the Evidence Act.
20. Looking to the evidence of the Tahsildar also who is PW3 in this case, he has deposed that the said application from the date of its presentation, which was processed throughout and after he gets the report as per Ex.P30 was put by accused No.2, accused No.1 recommended and he admitted for that even he also put his signature and this was completed on 20.12.2004 itself i.e. one day prior to the date of the trap when the Tahasildar is also put his signature making a recommendation to Assistant Commissioner though the file might not have been sent to the Assistant Commissioner Office on the very day this goes to show that work of the complainant was attended by accused No.1 by sending it into the office of the Tahasildar. I have also perused the principles enunciated in the decisions relied upon by the learned counsel for the accused No.1. Looking to the said principles also the material placed on record by way of oral : 37 : and the documentary evidence, the accused are able to show that the prosecution case is not worth believable and there is inconsistency in the case of the prosecution witnesses and the case is not proved beyond all reasonable doubt and so far as the reasonable doubts the benefit will have to go to the accused. These aspects were not considered properly and appreciated by the learned Special Judge while appreciating the materials placed on record. Therefore, the judgment and order of conviction passed by the learned Special Judge so far as it relates to appellant/accused No.1 is concerned, it is not sustainable in law and hence appeal is allowed. Judgment and order of conviction passed by the learned Special Judge so far as the appellant/accused No.1 is concerned is set aside. The appellant/accused No.1 is acquitted from the charges leveled against him.
21. The bail bonds executed by the appellant/ accused No.1 stands canceled.
: 38 :
22. The fine amount paid if any by the appellant/ accused No.1 be refunded to him.
Sd/-
JUDGE CKK/CLK