Karnataka High Court
Sri K M Mallaiah vs State Of Karanataka on 22 July, 2014
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.969/2011
BETWEEN:
Sri. K.M. Mallaiah,
Aged about 56 years,
S/o. Sri. M. Mallaiah,
R/o. Kenchanakuppe,
Bidadi Hobli,
Bangalore District.
Presently R/at House No.5,
MCC Aplartments,
2nd Floor, 3rd Main Road,
Srirampuram,
Bangalore-560 021. .. APPELLANT
(By Sri. K. Raghavendra for
Sri. C.V. Nagesh Associates, Adv.)
AND:
State of Karnataka,
By the Lokayuktha Police,
Tumkur. .. RESPONDENT
(By* Sri. Bahubali. A. Danawade, SPP)
This criminal appeal is filed under Section 374(2) of
CR.P.C. praying to set aside the order dated: 2.9.11 passed
by the II Addl. District and Sessions Judge, passed by the II
* Corrected vide Court order dated 21.08.2014
2
Addl. Dist., and Sessions Judge, Tumkur in Spl. C.
No.241/07.
This appeal having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court made the following:
JUDGMENT
This appeal is preferred by the appellant accused being aggrieved by the judgment dated 2.9.2011 passed by the II Additional District and Sessions Judge, Tumkur in Spl. Case No.241/2007 convicting the appellant of the offences punishable under Sections 7 and 13(1)(A) read with Section 13(2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for a period of nine months and to pay a fine of Rs.3,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months on the first count and further sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months on the second count. 3
2. The case of the prosecution in brief is that one V. Nagabhushan, who was working as Peon in the office of the Social Welfare Department, Sira, Tumkur District, was on leave on medical grounds and for sanctioning of the salary payable during the period of his unauthorized absence, it is alleged that the appellant accused demanded the bribe amount of Rs.3,000/- and also insisted the complainant that out of Rs.3,000/-, he has to pay Rs.2,000/- on 26.12.2006. It is also alleged in the complaint Ex.P.5 that as the complainant was working as peon in the said office, he was neither interested nor willing to give the said bribe amount. He approached the Lokayuktha police and lodged a complaint on 26.12.2006. On the basis of the said complaint, case was registered in the said police station crime No.13/2006 as per Ex.P.6 for the above said offences and there afterwards, entrustment mahazar proceedings were conducted in the Lokayuktha police station at Tumkur in the presence of the panch witnesses. Trap was laid on 26.12.2006 at about 14.40 hours and the appellant accused was found with the bribe amount of Rs.2,000/-. It is also the case of the prosecution that trap mahazar was drawn in 4 the office of the appellant accused and after recording the evidence of the prosecution witness and on completion of the investigation, charge sheet was filed against the appellant accused for the above said offence.
3. I have heard the learned Senior Counsel appearing for the appellant-accused and also the learned special Public Prosecutor for the respondent Lokayuktha.
4. Learned Senior Counsel appearing for the appellant, during the course of the argument, submitted that the complainant of this case has not been examined by the prosecution before the trial court which is fatal to the prosecution case. He has also made submission that P.W.1 Ashwathanarayana is a shadow witness, who according to the prosecution case, was instructed to accompany the complainant to the office of the appellant accused and he has to see and over hear as to the happenings between the complainant and the appellant accused about the demand and acceptance of the bribe amount. The purpose of sending the shadow witness along with the complainant is to get 5 more concrete evidence in the case and to corroborate the version of the complainant that there was demand and acceptance of bribe amount by the accused. The learned Senior Counsel has also made the submission that when the complainant himself is not examined before the Court, the question of P.W.1 corroborating the case of the prosecution does not arise at all. He also submitted that even according to the evidence of P.W.1, there is no material placed by the prosecution that there was demand by the appellant accused for the bribe amount. Hence, looking to the evidence of P.W.1 Ashwathanarayana, it will not help the case of the prosecution in establishing the charges leveled against the appellant. The learned Counsel made the submission THAT Ex.P.2 is the recovery mahazar for the bribe amount said to have been recovered from the accused person. In this regard, he made the submission that unless and until, there is satisfactory material on record to show that there was demand for the bribe amount and in the absence of such evidence, recovery is not sufficient to establish the charges alleged against the appellant. He made the further submission that even the tainted currency notes alleged to 6 have been given to the accused and received by the appellant-accused are not produced before the Court during the course of the trial. He made the submission that the purpose of preparing the entrustment mahazar and smearing the phenolphthalein powder to the currency notes and mentioning the number of those currency notes in the entrustment mahazar and so also after the raid, recovering such notes and mentioning the number of the notes said to have been seized is to get more corroborative evidence in the case that the accused has received such currency notes. Non production of such notes before the Court during the course of trial has defeated the very object of preparing a list with number of currency notes and it has also deprived the accused of his opportunity to cross examine the prosecution witnesses in that regard. He has also made the submission that though according to the case of the prosecution, the complainant was given micro tape recorder to carry the same to the office of the appellant-accused to record conversation that would happen between the accused and the complainant about the demand and acceptance of the bribe, the said micro tape recorder is not produced before the court 7 during the course of the trial. The learned Senior Counsel submitted that P.W. 4 is a witness to Exs.P.1 and P.2, but in the absence of satisfactory and cogent evidence, the only evidence of P.W.4 is not sufficient to arrive at a conclusion that the prosecution has proved its case beyond all reasonable doubts. The learned Special Judge without appreciating all these material aspects both oral and documentary has wrongly came to the conclusion that the prosecution has established the charges against the appellant accused and has wrongly convicted him. The learned Senior Counsel further submitted that the judgment and order under appeal is not in accordance with the mandatory provisions of law and there is a perverse and capricious view taken by the learned Special Judge in convicting the appellant accused. Hence, he sought to allow the appeal and to set aside the judgment and order under appeal. In support of his contention, the learned Senior Counsel for the appellant relied upon the following decisions:
1. Manu/SC/0964/2011 - P. Parasurami Reddy V/s.
State of A.P.
2. Criminal Appeal No.1839/12 D.D. 22/11/2012 - Rakesh Kapoor V/s State of Himachal Pradesh. 8
3. Criminal Appeal No. 1527/2002 D.D. 20/08/2010 - B T Ramesh V/s State by CBI/SPE/Bangalore
4. Criminal Appeal No.853/1998 D.D. 04/03/2004 - D Rajendran V/s State by Police Inspector, B.O.I.
5. Criminal Appeal No.2667/2006 D.D. 24/07/2012 - Kadappa V/s The State of Karnataka
5. As against this, learned SPP appearing for the respondent Lokayuktha, during the course of the arguments, submitted that even if the complainant is not examined in the case, the other materials placed on record would clearly establish that the appellant accused has demanded and accepted the bribe amount. He submitted that P.W.1 who is the shadow witness has clearly deposed in his evidence that the complainant has paid bribe amount to the appellant accused and he has also deposed that in his presence, the amount has been recovered from the accused under the recovery mahazar at Ex.P.2. He has also drew the attention of this Court to the document at Ex.P.9 and made the submission that immediately after the trap conducted in the case and after recovering the amount from the possession of 9 the appellant-accused, he was asked to offer his explanation for which he has given the explanation as per Ex.P.9. Hence, this itself goes to show that the appellant-accused has received the bribe amount of Rs.2,000/- from the complainant. The learned SPP further made the submission that regarding non production of currency notes, the prosecution has already placed the materials before the court that when the notes were sent to FSL for examination and when the police officer went to collect the currency notes from the FSL, it was informed that the currency notes were lost and in that regard, case was registered against the persons who are responsible for the same. Hence, he made the submission that in view of these facts and circumstances of the case, no adverse inference can be drawn against the prosecution. Hence, the lower court has rightly considered the materials on record and has rightly convicted the appellant accused. He further made the submission that there are no valid and justifiable grounds for this Court to interfere with judgment and order of the trial court and hence, submitted to dismiss the appeal. In support of his 10 contention the learned SPP relied upon the following decisions:
1. AIR 2001 SC 318 - M. Narasinga Rao V/S State of Andhra Pradesh
2. 2004 (4) SCC 399 - The State of Andhra Pradesh V/s. C. Uma Maheswara Rao
3. AIR 1998 SC 1474 - State of Uttar Pradesh V/s.
Zakaullah
6. Let me refer to the relevant portion in the evidence of prosecution witnesses.
7. P.W.1 Ashwathanrayana deposed in his evidence that on 26.12.2006 as his higher officer told him that he has to go to the Lokayuktha office. he went to the said office at about 12.00, 12.45 and C.W.3 was present. The higher officer introduced C.W.1 to him and to C.W.3 and told that accused has demanded the bribe amount to pay salary and to receive the attendance certificate of C.W.1. Then he was shown two currency notes of the denomination of Rs.500/- and ten currency notes of the denomination of Rs.100/- and powder was smeared to them. He has further deposed that 11 when the said currency notes were given to C.W.3, he counted and noted the numbers of those notes. Thereafter, powder was put into the water and then the hand wash of C.W.3 was taken. The water turned into pink colour and the same was put into the bottle and it was sealed and they were marked as M.Os.1 and 2. Then Mahazar was drawn as per Ex.P.1 and signature was obtained as per Ex.P.1(a). Then he was told that he should be with C.W.1 complainant as a shadow witness. He has further deposed that then they went to Sira in the Government vehicle along with Lokayuktha police staff and the complainant and C.W.3. They stopped their vehicle little away from the Social Welfare Office. C.W.1 and himself were instructed to go to the said office. C.W.1 complainant went ahead to the said office and he followed him. Accused-appellant was present there. When C.W. 1 complainant asked the accused to pay his salary and to issue attendance certificate, the accused asked the complainant as to whether he has brought the amount. Then, the complainant gave Rs.2,000/- to the accused. The accused kept it in his pant pocket. There afterwards, the complainant came outside and gave the signal. The 12 Lokayuktha police came to the office of the accused, introduced themselves and taken the hand wash of the accused which turned into pink colour. The sample powder water, the right hand wash so also the left hand wash of the accused, were marked as per M.Os.3 to 5 respectively. The same was put into the bottle and slip was pasted on the bottle. He also signed on the said slip. He has further deposed that the amount was taken out from the pant pocket of the accused. When the pant pocket was washed in the water mixed with powder, the water turned into pink colour. The same was taken and it is M.O.6. The pant of the accused is marked as M.O.7. The document seized from the office of the accused is marked as M.O.8. He also signed to the said document and on the mahazar also. They are as per Ex.P.2 and P.2(a).
8. In the cross examination, P.W.1 has deposed that they reached the office of the accused at Sira at 2.30 p.m. In between Tumkur and Sira, they have not stopped the vehicle. Their vehicle was stopped at the distance of 100 meter from the office of the accused. In between the said 13 place, there were no other buildings and the office was clearly visible. While going to the office, he was five meter away from the complainant. He denied the suggestion that when complainant went into the office and came back, at that time, he was nearby the door of the office. Himself and complainant gave the signal. When Lokayuktha police came inside the office, 5-6 persons were gathered in the office. He has not observed that from which pocket, the complainant has taken out the amount and gave to the accused. He has not heard as to what the accused and complainant were talking. The accused took out the amount from his pocket and gave it to the police. He has not observed as to which hand wash of the accused was taken first. But his two hands were washed in two separate bowls. He has further deposed that in his presence, the accused removed his pant and he was given dothi. But, he does not know as to by whom and from where, the dothi was brought. On the same day, the police have recorded his statement at Sira. He has denied the suggestion that on 26.12.2006, he had not been to the Lokayuktha office. He has denied the suggestion that the said currency notes were not smeared with 14 phenolphthalein powder nor they were counted and nor given to C.W.1. He has denied the suggestion that at 2.30 p.m., they had not at all went to Sira and he has not at all accompanied the complainant. He has denied the suggestion that the complainant has not asked the accused to pay his salary and the accused has not asked the complainant as to whether he has brought the amount and the complainant did not give Rs.2000/- to the accused and the accused did not keep it in his pant pocket. He has also denied the suggestion that he is deposing falsely that when the hand wash of the accused was taken in the water mixed with powder, it turned to pink colour.
9. P.W.2 is one Yogendra Tripathi. He has deposed in his evidence that from May 2006 to June 2007, he worked as Commissioner in the Social Welfare Office. On 23.3.2007, the Karnataka Lokayuktha Additional Director of Police sent a letter along with the documents seeking sanction to prosecute the accused. He examined all the documents carefully and satisfied that there is a case made out for issuance of sanction to prosecute the accused. Accordingly 15 on 14.6.2007, he issued sanction as per Ex.P.3 and P.3(a) is his signature. In the cross examination, P.W.2 has denied the suggestion that as the accused was working as Group B office, he was not having the authority to issue the sanction. He has also denied the suggestion that without examining the documents and though there was no prima facie case to prosecute the accused, even then, he has issued the sanction order.
10. P.W.3-Manjunatha, an Assistant Engineer, has deposed in his evidence that on 26.12.2006, he received a letter from Loakyuktha office and accordingly, he verified the office in the social welfare department as shown by P.W.1 and he prepared the map of the said place as per Ex.P.4 and P.4(a) is his signature. In the cross examination, he has deposed that he has prepared the draft map. But he has not given it to P.W.1. In the map, he has not mentioned the date of his visit and about the draft map. He has not mentioned the distance between the table and the wall. He has denied the suggestion that he has prepared the map Ex.P.4 without visiting the said place.
16
11. P.W.4 Shankarananadaiah has deposed in his evidence that on 26.12.2006 at about 12.45 p.m., when he went to Lokayuktha office, charge sheet witness Nagabhushan was introduced to him and he has gone through the averments of the complaint lodged by C.W.1. The two currency notes of denomination of Rs.500/- and ten currency notes of Rs.100 brought by C.W.1 complainant were give to him for counting. After counting, he put the powder to the said notes. Thereafter, when he washed his hands in the solution, it turned into the pink colour. M.O. Nos.1 and 2 are the solution used before washing his hand and after washing his hand respectively. The said notes were given to the complainant. Ex.P.1(a) is his signature put in the Lokayuktha office and there afterwards the complainant himself and C.W.2 went in the Lokayuktha jeep to Sira. C.W.1 complainant was sent to Lokayuktha office informing him that in case if the accused demands and received bribe amount, then he has to give signal by tying his towel to the waist. P.W.4 has further deposed that C.W.1 complainant went into the office of the accused and after 5- 17 10 minutes, he came outside and gave signal. There afterwards, C.W.12 and the staff and himself went inside the office. Then C.W.12 and himself introduced themselves and hand wash of the accused was taken into the solution and it turned to pink coulor and it was taken into the bottle and sealed. M.Os.3 to 5 are the bottles containing hand wash of the accused and slip was pasted on the bottle and he also signed on the slips. The amount was taken out from the pant pocket of the accused and after verification, the numbers of the notes in the pant were tallied with the numbers of the notes mentioned in the Lokayuktha office. The notes were seized and the pant of the accused was taken out and when the pocket of the pant was washed in the solution, the solution turned into pink colour. M.O.6 is the pink coloured solution of the wash of the pocket of the pant of the accused. The file M.O.8 was secured from the office of the accused and he also put the signature as per Ex.P.2(a).
12. In the cross examination, P.W.4 has deposed that he counted the numbers of notes, his hand wash was taken smearing the powder and the said notes were kept into the 18 pocket of C.W.1-complainant by C.W.12. C.W.1 complaint has not touched the notes. The office of the accused was not visible to the persons who were sitting in the jeep and there were buildings in between the place of the said office and the place at which the jeep was stopped. Within 3-4 minutes after the complainant went inside the office of the accused, P.W.1-shadow witness went into the office. When C.W.1 gave the signal, himself and Lokayuktha staff were at one place. C.W.12 Ashwathanarayana firstly went inside the office and from the right side pant pocket of the accused, the amount was taken out by C.W.1 complainant. C.W.12 Ashwathanarayana verified the numbers of the notes. There were two bowls containing sodium carbonate solution. Dothi was arranged to the accused and pant of the accused was secured. When the proceedings were completed, they came back to Lokayuktha office and then the mahazar was prepared. He was in the Lokayuktha office for two hours after they came to the Lokayuktha office at 7.30 p.m. The others were also present in the office after putting his signature to the trap mahazar. Then, he went to his house and on the same day, he gave his statement. He denied the 19 suggestion that on 26.12.2006, he has not gone to the Lokayuktha office and no such proceedings were taken place in the Lokayuktha office. He denied the suggestion that they have left Tumkur at 1.45 p.m. and not reached Sira at 2.45 p.m. He denied the suggestion that he is deposing falsely that after the complainant shown the signal, himself and others went into the office of the accused and the hand wash of the accused was taken. He has also denied the suggestion that from the pant of the accused, amount was not seized and the pant pocket was not washed in the solution and they have not seized any file from the office of the accused.
13. P.W.5 one B.K. Badiger deposed in his evidence that from 9.6.2006 to 1.2.2011, he worked as FDA in the Social welfare office at Sira. On 26.12.2006, he was informed that Lokayuktha Police trapped the accused. When the Lokayuktha Police asked the accused to produce the file relating to the complainant and the accused in turn instructed him that he produced the said file, it is as per M.O.8. In the cross examination, P.W.5 has denied the suggestion that no trap was conducted and on that day, he 20 has not produced any file relating to C.W.1 complainant. He has denied the further suggestion that though he does not know anything but to help C.W.1, he is deposing falsely.
14. P.W.6-N.T. Ashwathanarayana in his evidence has deposed that from 28.9.2006 to 14.8.2008, he was serving as Police Inspector in the office of the Karntaka Lokayuktha at Tumkur . On 26.12.2006 at 12.30 p.m., C.W.1 complainant came and filed a written complaint as per Ex.P.5 and on the basis of the same, he registered in crime No.13/2006 and issued FIR as per Ex.P.6. Ex.P.6(a) is his signature. Then he issued requisition as per Exs.P.7 and 8 for securing the witnesses from the D.C. office and Tahsildar office. Then P.Ws.1 and 4 came at 1.15 p.m. and he introduced C.W.1 complainant to them and also explained the matter. He has further instructed that as per his instruction, C.W.1 complainant produced two currency notes of the denomination of Rs.500/- and ten currency notes of the denomination of Rs.100/-. Phenolphthalein powder was smeared to the notes through C.W. 8 and got the notes counted through P.W.4 Shankaranandaiah and then he got 21 the said notes put in to the pocket of C.W.1 complainant. Then he prepared the sodium carbonate solution and some portion is taken out as per M.O.1 and sealed it. In the remaining solution, when the hands of P.W.4 were washed, the solution turned into pink colour and the same was taken into the bottle and sealed as per M.O.2. Then he explained about the characteristic of sodium carbonate to the witnesses. Then, he instructed P.W.1 Aswathanarayna to act as a shadow witness and instructed the complainant that in case, the accused received the bribe amount, then he has to give signal by tying the black colour towel to his waist. Ex.P.1 is the entrustment mahazar and P.1(e) is his signature. Then, he kept M.Os.1 and 2 safely and they all washed their hands. Then himself, C.W.1-complainant C.Ws.2, 3 and his staff went to Sira at 2.30 p.m. He sent C.W.1 complainant and P.W.1 to the office of the accused. After ten minutes, C.W.1 complainant came out and gave the prearranged signal. Then himself, his staff and P.W.4 Shankarananadaiah went to the office of the accused. The complainant pointing the accused told that he received the amount. Then, he introduced himself to the accused and 22 prepared the sodium carbonate solution in two bowls and some portion was taken as sample and put into the bottle as M.O.3. In the remaining solution, the hand wash of accused was taken and the solution turned into pink colour. The same was put into two bottles as M.Os.4 and 5. When he asked the accused abut the amount which he has received from the complainant and when the accused told that, it is in his pant watch pocket, he took out the said amount through P.W.4. When the amount was counted, it was tallied with the entrustment mahazar. Then, he put the notes into the cover and sealed it and seized the pant from the accused by arranging the another one. Then sodium carbonate solution was prepared and sample was taken out as per M.O.9. In the remaining solution, when the pant watch pocket of the accused was washed, it turned into pink colour which was taken into the bottle as per M.O.6. He has seized the pant of the accused as per M.O.7 and when he asked the accused to offer his explanation for receiving the amount, the accused gave in writing as per Ex.P.9 and P.9(a) is the signature of the accused. When he has asked the accused to produce the file relating to C.W.1 complainant, he 23 instructed P.W.5 B.K. Badiger FDA and he produced the file which is M.O.8. He issued requisition to the Engineer to prepare the sketch map and accordingly, the Engineer prepared sketch map as per Ex.P.2 and P.2(e) is the signature of the accused. Then, they all went to the police station and on 27.12.2006, he recorded the statement of C.Ws.1 to 6 and on 28.12.2006, he sent the seized articles and also the notes to FSL through C.W. 8 for examination. On 3.1.2007, he received Ex.P.4. On 9.1.2007, C.W.8 went to Bangalore and brought back all the articles sent for examination except the amount . Ex.P.10 is the FSL report and C.W.8 informed him that the amount was lost and gave him the copy of the FIR. He recommended departmental enquiry for the loss of notes by addressing letter to the higher officers and informed about the same to the Court. Then on 11.1.2007, he recorded the statement of C.W.8 and addressed letter for issue of sanction order to the higher officers of the accused. Ex.P.11 is the 17 photographs and its negatives which were taken in his office and the office of the accused. On 27.7.2007, he received Ex.P.3 and filed charge sheet. He stopped his jeep at the distance of 500 to 24 1000 feet from the office of the accused. From that place, the social welfare office was visible. Within 15 minutes after C.Ws.1 and 2 went to the office of the accused, there was a signal. When he went to the office of the accused, the accused alone was there in his office and there were 7-8 office staff. When the accused was washing his hand at that time, he gave instruction to the Engineer to prepare the sketch map. He denied the suggestion that for the purpose of this case, he created M.O.8. He denied the suggestion that he has not got typed any mahazar in the office of the accused and he got it prepared in the Lokayuktha office. He denied the suggestion that Exs.P.1 and 2 are prepared from the same type machine.
15. I have perused oral evidence of P.Ws.1 to 6, documents Exs.P.1 to P.11 and material objects M.Os.1 to 9. I have also perused the statement given by the appellant accused under Section 313 of Cr.P.C. in respect of the incriminating circumstances and the answers given by him. 25
16. Regarding the contention of learned Counsel appearing for the appellant accused that complainant has not been examined before the trial court and shadow witness-P.W.1 has stated in his evidence that he has not heard as to what was the conversation between the accused and the complainant, and hence the demand and acceptance of the bribe amount from the accused is not at all satisfactorily established by the prosecution is concerned, I have perused decision of Hon'ble Supreme Court in M. Narasinga Rao's case referred supra so also the decisions relied upon by the learned Counsel for the appellant which are referred above. In M. Narasinga Rao's case, the Hon'ble Supreme Court laid down the proposition as under:
" Prevention of Corruption Act (49 of 1988), S. 20(1) - Acceptance of gratification -
Presumption - Is 'Compulsory' and not 'discretionary'-Prosecution proved that accused received gratification from complainant - In circumstances Court can draw legal presumption that said gratification was accepted as reward for doing public duty.
The expression 'may presume' and 'shall presume' are defined in S.4 of the Evidence Act. 26 The presumptions falling under the former category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latter as 'legal presumptions' or compulsory presumptions. When the expression 'shall be presumed' is employed in S. 20(1) of the Act, it must have the same import of compulsion. When the sub-
section deals with the legal resumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under S. 20 is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that he said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. "
27
In para 5 of the said judgment, it is observed by their Lordships as under :
It took four years thereafter for the Special Judge to commence evidence taking for the prosecution. The said long interval, perhaps, helped the appellant as is reflected from the fact that PW1 and PW2 made a volte-face in the trial Court and they denied having paid any bribery to the appellant and also denied that appellant demanded the bribe amount. PW1 said for the first time, that he acted at the behest of one Dr. Krishna Rao and went to the office of the appellant and did everything as directed by the said Krishna Rao. Both the witnesses were declared hostile by the Public Prosecutor and both were cross-examined in detail. After examining the remaining witnesses for prosecution the appellant was called upon to answer questions put to him under Section 313 of the Code of Criminal Procedure. He then submitted a written statement in which he said that Dr. Krishna Rao bore grudge against him and that person orchestrated this false trap against him by employing PW1 and PW2. According to the appellant, the tainted currency notes were forcibly stuffed into his pocket. He examined two witnesses on the defence side and both of them said that on the dates when the 28 alleged demand was made by the appellant he was on tour at a different place.
17. Therefore, looking to the decision of the Hon'ble Supreme Court regarding the demand and acceptance of the bribe amount by the accused, it is not necessary that it has to be established by direct evidence and it can be established even on the other modes and on the basis of materials available on record. Therefore, looking to the materials on record, it is the case of the prosecution that complainant Nagabhushan came to the Lokayuktha office and lodged a complaint as per Ex.P.5 wherein he has clearly stated that the accused demanded bribe amount of Rs.3,000/- from him and the accused also insisted the complainant that on the day of lodging the complaint i.e., 26.12.2006, the complainant has to arrange Rs.2,000/- immediately to show the official favour i.e. to issue salary certificate to order for payment of the salary for the leave period and also to issue the attendance certificate. It is no doubt true the complainant has not been examined before the Court. But looking to the original records secured from the trial court, the order sheet goes to show that on 3.8.2011, it was 29 reported to the Court that C.W.1 complainant is expired. Even the same has been discussed by the trial Court in the judgment also.
18. Now coming to the evidence of P.W.1 who is a shadow witness in the case, he has clearly deposed in his evidence i.e. on 26.12.206 he was instructed by his superior officer to go to the Lokayuktha office and accordingly he went to the Lokayuktha office. In the said office, P.W.6 introduced the complainant to P.W.1 and also told him that the accused demanded bribe from the complainant and hence, trap will have to be laid. P.W.1 has deposed in detail about the entrustment mahazar prepared in the office of the Lokayuktha as per Ex.P.1 and he has also clearly mentioned that the complainant produced the amount in notes on which phenolphthalein powder was smeared and also the same were put into the pocket of the complainant and the complainant was instructed to go to the office of the accused and on demand by the accused, then only C.W.1 has to take out the notes and to pay it to the accused. He has also deposed that he was asked to accompany C.W.1- 30 complainant and accordingly, he accompanied C.W.1 to the office of the accused. The accused asked C.W.1 as to whether C.W.1 has brought the amount and when C.W.1 paid Rs.2,000/- to the accused, he kept it in his pant pocket. Then C.W.1 and himself came out and gave signal, then the raiding party rushed to the chamber of the accused. P.W.1 has also spoken about the witness P.W.6 asking the accused to wash his hands in the sodium carbonate solution and when accused washed his hands, it turned into pink colour. The hand wash was taken into two bowls and the pink colour solution was taken to the bottles and the bottles were sealed.
19. Similarly, P.W.4 also gives evidence in detail that in his presence, entrustment mahazar was prepared in the Lokayuktha office and he also went to the office of the accused along with P.W.6 and P.W.1. C.W.1 gave the signal, he along with P.W.6 went inside the chamber of the accused and in his presence, hand wash of the accused was taken in the solution which turned into pink colour and the same was secured in the bottle. He has also deposed that the accused 31 was asked as to where has he kept that amount and the accused has shown his pant pocket and then the amount was taken out and it was verified with the numbers mentioned in the entrustment mahazar and the same was tallied.
20. So also P.W.6, the investigating officer has also deposed about the entrustment mahazar Ex.P.1 and the trap mahazar Ex.P.2 and taken the hand wash of the accused in the solution in two separate bowls which turned into pink colour and it was taken in separate bottles. He has also deposed that when the accused was asked where he has kept the money received from C.W.1, he shown his pant pocket and then the amount was taken out and in the presence of the panch witnesses, the pant watch pocket was also washed in the solution which also turned into pink colour and the same was secured in the bottle. It is also the evidence of P.W.6 the investigating officer that he has sent the seized articles M.Os.1 to 9 and the currency notes recovered from the accused to the FSL office for examination and report. The FSL office issued the examination report as 32 per Ex.P.10. Perusing Ex.P.10 it clearly goes to show the receipt of the said articles and article No.6 as mentioned in page No.2 of Ex.P.10 also goes to show the currency notes with their numbers which are received in the FSL office for examination and on page No.3 in the result column, it is stated as under:
" The presence of both Phenolphthalein and sodium carbonate is detected in the articles bearing Nos. 2, 4, 5 and 8.
The presence of only Phenolphthalein is detected in the articles bearing Nos. 6 & 9.
The presence of only sodium carbonate is detected in the article bearing Nos. 1,3 & 7.
The series, numbers and denominations of the currency notes sent for chemical examination tallies with those of the currency notes seized during the trap as mentioned in the invoice.
The seals of all the articles sent for chemical examination were verified and tallied with the enclosed specimen seal and found to be "K" which were correct and intact.
All the sealed articles sent for chemical examination were opened in my presence and taken up for analysis. "33
21. Therefore, looking to these materials produced by the prosecution before the trial court, they clearly go to show that the accused has demanded and accepted the bribe amount of Rs.2,000/- from C.W.1. It is true that P.W.1 who has been examined though stated in his evidence that he has not heard the conversation between C.W.1 and the accused, but only on that basis and when there is a satisfactory material placed by the prosecution, the entire case of the prosecution regarding demand and acceptance of the bribe amount cannot be rejected. Not only that, the document Ex.P.9 is the explanation offered by the accused that immediately after the trap, he was asked by P.W.6 as to offer his explanation with regard to money found with him. In the explanation, it is mentioned by the accused that Sri. Nagabhushan i.e,. C.W.1 with some intention and without knowing gave him Rs.2,000/- asking him to keep the money with him and to give back to him when demanded by him and this is true. P.W.6 has clearly deposed in his evidence that the accused gave his explanation in writing in his presence and the accused has signed the said explanation and P.W.6 has also marked his signature. But looking to the 34 evidence of P.Ws.1 to 6 and as rightly observed by the trial court, there is no suggestion to any of the prosecution witnesses that the accused has not offered such explanation nor he gave in writing as per Ex.P.9. But only in his examination under Section 313 of Cr.P.C. denied Ex.P.9 when questions were put to him, P.W.6 has deposed that accused has offered explanation as per Ex.P.9 and there is signature on Ex.P.9. The trial Court compared his signature on Ex.P.9 with the vakalath and the plea form and held that they are one and the same. I have also compared the said signature on Ex.P.9 with the signature on vakalath and plea form and they are tallying with each other and it is the signature of the accused. This itself goes to show that the accused is not fair enough in offering his explanation and the same cannot be accepted at all.
22. When the materials placed by the prosecution are satisfactorily established that accused has received the amount from C.W.1 complainant, there is a legal presumption that it is the gratification which he has received and it is for the accused to satisfactorily explain about the 35 same. But looking to the Ex.P.9 and the conduct of the accused, even denying his own explanation letter goes to show the guilty conscious of the appellant accused. Therefore, looking to the materials placed on record, the explanation of the accused is not satisfactory and not only that, when he has denied that he has given his explanation as per Ex.P.9, now he is not permitted to take assistance of Ex.P.9 to say that it was given to him by the complainant without knowing and for some purpose asking him to keep it with him and to return as and when he requests.
23. One of the points canvassed by the learned Counsel for the appellant during the course of arguments that P.W.4 has deposed in the cross examination that the trap mahazar Ex.P.2 has been prepared after coming to the Lokayuktha office and he has also stated that P.W.4 was in the Lokayuktha office for two hours and other were also present with him and after putting his signature, he went to his house. So it is the contention of the appellant accused that this is one of the important material circumstances which goes to show and creates the doubt whether really the 36 raiding party visited the office of the accused on that day and conducted the trap. In this connection, I have perused the evidence of P.W.4 B.V. Shankaranandaiah. Perusing the cross examination in para No.4 on page No.4 of his deposition, it is true that he has stated that after everything was over, they returned back to Lokayuktha office and got typed the mahazar. They left Sira to 6.30 p.m. and came at 7.30 p.m. After they came back, P.W.4 was in the Lokayuktha office for two hours and other were also present with him. After putting his signature to the trap mahazar, P.W.4 went to his house. But this is not the only evidence adduced on behalf of the prosecution about the trap conducted in the office of the appellant accused, there are other witnesses also. Looking to the evidence of P.W.1, who is a shadow witness and P.W.6, who is the investigating officer in this case, both have clearly stated in their evidence that the trap mahazar was prepared in the office of the accused. In their evidence, looking to the cross examination, nothing has been elicited to disbelieve their evidence that the trap proceeding mahazar was conducted in the office of the accused. I have also perused the document at Ex.P.2 trap 37 mahazar. In this document, on the top of the said mahazar, it is mentioned that on 26.12.2006 Social Welfare Office, Sira Taluk, Tumkur District, in the presence of the following witnesses, the trap mahazar got typed.
24. The prosecution has also produced document Ex.P.11. Looking to Ex.P.11, these are the photographs, totally there are 17 photographs along with negatives are produced. Looking to these photographs, they clearly go to show that the trap was conducted in the office of the accused. In the photographs, the appellant accused so also the other trap parties are seen and even there is a board on the wall as Department of Social Welfare, Sira Taluk, Tumkur District.
25. Apart from the photographs, the evidence of P.W.5-VK Badiger who is FDA has deposed in his evidence that he was informed on 26.12.2006 that Lokayuktha Police have trapped the accused. He has also deposed that Lokayuktha Police asked the accused person to produce the file pertaining to C.W.1 complainant and in turn, the 38 accused instructed P.W.5 to produce the file and accordingly, he has produced the file marked as M.O.8. In the cross examination though it was suggested to the said witness that on that day no such trap was conducted, he denied the said suggestion and he has also denied the suggestion that that he has not produced any file pertaining to C.W.1 complainant.
26. Looking to all these materials, the Court cannot see only the evidence of P.W.4 in isolation, but the Court has to look into the entire materials placed on record and the cumulative effect of such evidence. Looking to these materials on record, they clearly go to show that the trap was conducted in the office of the accused on the said date and time in question.
27. With regard to evidence of P.W.4, who in the cross examination has deposed that the trap mahazar was prepared in the Lokayuktha office, the lower court has also discussed that the evidence of the said witness is recorded after the lapse of five years after conducting the trap. 39 Therefore, it is but natural that such discrepancies may happen during the course of evidence. Only on that basis, the entire case of the prosecution and the satisfactory materials placed on record cannot be rejected.
28. The case of the prosecution is that the complainant remained absent in attending to the office and he made an application to the Social Welfare office to pay his salary for the leave period and to issue attendance certificate for the said period and in that connection and for the said work, the accused has demanded and accepted the bribe amount of Rs.2,000/-. I have perused the file M.O.8 and the application dated 4.12.2006 filed by the C.W.1 complainant which is in the said file and even there is endorsement on the said application by the office of the Taluk Social Welfare Office, Sira dated 4.12.2006. This goes to show that the work of the complainant was pending with the accused and to show the official favour in respect of that application, the accused has demanded and accepted the bribe amount. 40
29. Regarding the contention of the appellant accused that the currency notes which are said to have been recovered from his possession are not produced during the course of the trial is concerned, P.W.6 the investigating officer has clearly deposed in his evidence that when he sent the police official to bring back the material objects, he brought only M.Os. but not the currency notes and informed that the currency notes were said to have been lost. P.W.6 also deposed that he has recommended for initiating action against the concerned persons so also he informed the same to the Hon'ble Court. In this regard, the prosecution has produced the document at Ex.P.10 about which I have already referred. This is the letter from the office of the Chemical examiner dated 9.1.2007 wherein as per Art.6 on page No.2 of Ex.P.10 the FSL office has acknowledged the receipt of the currency notes by mentioning the numbers also from Sl. Nos.1 to 10. Therefore, when the said numbers are tallying with the numbers of notes mentioned in the entrustment mahazar Ex.P.1 and trap mahazar Ex.P.2, only on the ground that the prosecution has not produced the currency notes before the court cannot be an adverse 41 circumstance to the prosecution when the investigating officer P.W.6 has already given satisfactory evidence in that regard. So the said circumstance will not come to the aid and assistance of the appellant accused in getting his acquittal from the case.
30. Considering the entire materials both oral and documentary and also the material objects got marked in the case, I am of the opinion, that the prosecution has established its case beyond all reasonable doubt. The lower court has rightly appreciated the materials on record and extensively considered each and every aspect of the matter and has rightly come to the conclusion in convicting the appellant accused. No illegality has been committed by the lower court nor there is any perverse or capricious view taken by it in coming to such a conclusion. There are no valid and justifiable grounds for this Court to interfere into the judgment and order of the trial Court.
31. Accordingly, the appeal is dismissed. The judgment and order dated 2.9.2011 passed by the II 42 Additional District and Sessions Judge, Tumkur in Spl. Case No.241/2007 is hereby confirmed.
Sd/-
JUDGE Cs/-