Karnataka High Court
P Govindaraju vs State on 6 March, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 06TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.1022 OF 2008
BETWEEN:
P. Govindaraju,
Son of T.,V.Pichaiah,
Aged about 64 years,
Smt. P. Sita Lakshmi
Wife of Late P. Govindaraju,
Permanently residing at
No.687, Sathyavana Muthu Street,
K.K. Nagar,
Thiruchinappaly - 620 021,
Tamilnadu, now temporarily
Come down to Bangalore. ...APPELLANT
(By Shri. V.A. Rama Sharma, Advocate)
AND:
State by Inspector of Police,
CBI, represented by
Standing Counsel for CBI
2
In the Hon'ble High Court,
Bangalore. ...RESPONDENT
(By Shri. Prasanna Kumar , Advocate for Shri. C.H. Jadhav,
Senior Advocate)
This Criminal Appeal is filed under Section 374(2) Code
of Criminal Procedure, 1973, by the Advocate for the
appellant/accused praying to set aside the conviction sentence
dated 30.9.2008 passed by the XXI Additional City Civil and
Sessions Judge and Special Judge for CBI Cases, Bangalore in
Spl.C.C.No.185/2000 - convicting the appellant/accused for the
offences punishable under Section 7, 13(2) read with Section
13(1)(d) of Prevention of Corruption act, 1998. And convict is
hereby directed to undergo S.I. for six months and pay a fine of
Rs.10,0000/- and in default to pay the fine amount he shall
under S.I. for one month for the offences punishable under
Section 7 of Prevention of Corruption Act. And further he is
directed to undergo S.I. for a period of one year and shall pay a
fine of Rs.10,000/- and in default to pay the fine amount he
shall undergo S.I. for a period of two months for the offence
punishable under Section 13(2) read with 13(1)(d) of
Prevention of Corruption Act. The sentences on imprisonment
shall run concurrently.
This appeal is coming on for Hearing this day, the Court
made the following:
3
JUDGMENT
Heard the learned counsel for the appellant and the learned Senior Advocate Shri C.H. Jadhav, appearing for the respondent - Central Bureau of Investigation.
2. At the outset, it is brought to the attention of the court that the appellant died during the pendency of this appeal and further that he had also suffered a Departmental Inquiry at which he was found guilty of the charges and his entire pension and other benefits stand forfeited. That decision and award at the Departmental inquiry has attained finality, as the appellant or his legal representatives have not chosen to challenge the same. Therefore, it is contended that the present appeal is rendered infructuous. In the event, if there is to be an Honourable acquittal of the appellant, it would serve little or no purpose.
3. However, the learned counsel for the appellant would submit that there is a remedy of appeal provided insofar as the 4 civil proceedings are concerned and notwithstanding the period for filing such appeal may have passed, the appellant is survived by his widow and she is dependant on whatever benefits that may have accrued to her husband, would enure to her benefit in spite of the delay in filing the appeal. Further, insofar as the present appeal is concerned, the fair name of the appellant would yet be required to be saved and the legal representative who is now on record is keen on ensuring that her husband's fair name is protected. Secondly, in the event that there is a honourable acquittal which the appellant has sought to make out in this appeal, it is still possible for the appellant through his legal representative to seek the benefits as a consequence thereof. Therefore, to contend that the appeal has been rendered infructuous is incorrect and seeks to urge the ground in the appeal. It is in this background, that the present appeal is addressed.
2. The brief facts leading up to the appeal are as follows: 5
The complainant one B. Vasudevamurthy was working as a Lighting Assistant at the Doordarshan Kendra (DDK), Bangalore. There were others namely K. Vasudeva, B.P. Parthasarathy, R.L. Manjunath, B. Prabhakar and A. Appaji Rao who were also working as lighting assistants at DDK, Bangalore. They were employed on casual basis which was pursuant to an order of the Apex Court. They had made representations to the DDK to regularize their services. Since those representations were not considered, they had approached the Central Administrative Tribunal in respect of their grievances. However, it transpires that in the year 1998, an autonomous body known as Prasara Bharathi Board was constituted by the Central Government. The autonomous body Prasara Bharathi Board having been created, the Central Administrative Tribunal lost its jurisdiction to deal with the grievance of the above said persons and therefore, the matters stood transferred to this Court. This Court, in its writ jurisdiction, had disposed of the petition on 7.3.2000 directing 6 the DDK, Bangalore, to regularize the services of all casual lighting assistants. This was not complied with, according to the complainant. At that point of time, the appellant was working as the Senior Administrative Officer, DDK, namely in the year 2000-2001. Pursuant to the order of this Court, the casual lighting assistants were pursuing the matter of regularization of their services with the accused. In that connection, the complainant had met the accused on 28.04.2000 in his office chamber. It was alleged that the appellant had mentioned that he was not properly taken care of and unless something was done, they could not expect any help from him, which he was capable of rendering. When pressed further as to what was the meaning of such a statement, the appellant is said to have demanded illegal gratification of Rs.20,000/-, for him to take further action in the matter, in expediting the regularization of their services. When it was brought to the appellant's attention that since there was already an order of the court which was required to be complied with and that the demand 7 for the bribe may not be reasonable, the appellant is said to have become furious and had declared that he would ensure that the order was not implemented till such time that he was paid the bribe. He had even suggested that the entire amount of Rs.20,000/- need not be paid in one installment and that it could be paid in several installments, at which the complainant had suggested that he would discuss with his colleagues who were all similarly aggrieved and then get back to the appellant. It is in that background it is alleged that the complainant approached the respondent - C.B.I and lodged a complaint as regards the demand for bribe on 1.5.2000, against the appellant. On 8.5.2000, the complainant along with A. Appaji Rao again visited the appellant in his office chamber and enquired him about the regularization of services, at which the appellant had suggested that they meet at a restaurant situated in Palace Guttahalli near the BDA office. This was duly intimated by the complainant to the C.B.I. It is claimed that the Police Inspector, C.B.I., in turn, had provided a miniature cassette tape 8 recorder and had asked the complainant to record the conversation that would transpire between the complainant and Govindaraju when they did meet at the Restaurant, as proposed.
It is claimed that the complainant and A. Appaji Rao went to the restaurant at about 7.00 p.m. and the appellant who was also present, negotiated as to the payment of the bribe amount. When the complainant expressed his inability to pay the entire bribe amount claimed, the accused appellant had demanded at least Rs.10,000/- be made as a part payment, and it was suggested that the same be brought to his residence at Munireddy Palya in the morning on the next day. When the complainant had expressed his inability to raise the entire amount of Rs.10,000/- immediately, the accused had reluctantly agreed to receive Rs.3,000/- in cash and Rs.7,000/- by way of a post-dated cheque, on the next day.
It is claimed that the complainant related this arrangement to the police, who in turn asked him to go over to the C.B.I. office at 6.30 a.m. on 9.5.2000 along with the cash of 9 Rs.3,000/- and a cheque which was to be handed over to the appellant. Accordingly, the complainant did go to the office at the aforementioned time. He was told by the Inspector that a trap would be arranged and the drill, insofar as the execution of the trap, was explained. It further transpires that one H.B. Surendra Swamy who was an Extension Inspector working with the Coffee Board and one K.V. Gururaj, an employee of the State Bank of Mysore, also came there. These persons were introduced to the complainant. The Inspector explained to all of them the purpose for which they were called there and also demonstrated the effect of the phenolphthalein test. Further, the manner in which it was to be used in laying the trap against the accused, was explained to them and then, the currency notes which the complainant had brought were smeared with phenolphthalein powder and the currency notes and cheque were handed over to the complainant, after preparing the pre- entrustment mahazar. The complainant was instructed to hand over the cash and cheque only on the demand made by the 10 accused at his house, where the complainant was expected to meet him. Thereafter, the entire team, namely, the Police Inspector, his staff and the panch witness along with the complainant, had proceeded to the residence of the appellant. One of the witnesses H.B. Surendraswamy was asked to stand near the house of the accused to receive the pre-arranged signal while others remained at a distance in a Maruthi van, around the street corner. The complainant was asked to switch on the miniature tape recorder that he was carrying and the complainant proceeded towards the house of the accused. The accused who answered the door had asked the complainant whether he had brought the bribe amount and the cheque, as promised. The complainant went into the house of the accused appellant and was made to sit on a cot while the complainant occupied another cot and received the cash and cheque which was handed over to the appellant, and placed the same in a pouch. It was 8.30 a.m., at that point of time. The complainant came out the house and gave the pre-arranged signal of wiping 11 his face three times, which was conveyed to the team which was waiting outside and they immediately pounced on the appellant and closed the door from inside the house and thereafter carried out the further exercise of washing the fingers of the appellant in sodium carbonate solution and collected the solution, which had turned pink in colour, evidencing the fact that the appellant had handled the notes tainted with phenolphthalein powder, and the same was sealed and marked to be produced as evidence at the trial. It is in this background that after further investigation and recording of statements, the seizure mahazar, etc., the appellant was charge-sheeted and ultimately charges were framed against the appellant and after the appellant pleaded not guilty and claimed to be tried, the prosecution tendered its evidence and examined PWs 1 to 9 and marked Exhibits P1 to P15, as also documents on behalf of the defence as Exhibits D1 to D5 and material objects MOs 1 to 8 were marked. The statement of the accused under Section 313 Cr.P.C. was recorded.
12
3. On the basis of the material evidence, the statement of the accused and the contentions of the rival parties, the court below had framed the following points for consideration:
"1. Was it necessary for the CBI to obtain a fresh consent as required under Section 6 of the Delhi Special Police Establishment Act, 1946 pursuant to the demand made by the accused on 8/5/2000 at Hotel Nandini Deluxe Restaurant?
2. Has the prosecution proved that it obtained valid sanction from the competent authority for prosecuting the accused?
3. Has the prosecution proved beyond reasonable doubt that the accused, as a public servant, accepted for himself gratification of Rs.3,000/- by way of cash and a post dated cheque of Rs.7,000/- as a motive or reward for doing the official act or showing favour to the complainant and his colleagues in the matter of regularization of their services at Doordarshan Kendra, Bangalore and thereby committed an offence 13 punishable under Section 7 of Prevention of Corruption Act, 1988?
4. Has the prosecution further proved that the accused abused his position as a public servant and obtained for himself pecuniary advantage by corrupt means as mentioned in Point NO.3, and thereby committed an offence of criminal misconduct as punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988?
5. What order?"
The trial court answered Point No.1 in the negative and the other points in the affirmative and had convicted the appellant to simple imprisonment for six months and to pay a fine of Rs.10,000/- for the offence punishable under Section 7 and to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,000/- for the offence punishable under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. It is that which is under challenge in the present appeal. 14
4. The learned counsel for the appellant would first of all contend that the very motive in the appellant making a demand for a bribe is absent. In that, he would point out that it is the case of the complainant as well as the other witnesses themselves that there was no need to pay any such bribe when all that was required was the implementation of an order passed by this Court directing the regularization of services of all casual lighting assistants including the complainant and his colleagues. Therefore, the question of there being any official favour which could be extended by the appellant in consideration of the bribe amount that was to be paid was totally absent. The regularization of services was also a policy decision of the Prasar Bharathi Limited, which is an All India Organisation and such regularization of casual lighting assistants was extended throughout the country and therefore, there was no question of any Regional Centre such as a Doordarshan Kendra, Bangalore, extending the regularization of services as a special favour in favour of casual lighting 15 assistants and more significantly, it did not lie in the hands of the appellant to extend such a favour or to expedite any such benefit that may have accrued to the casual lighting assistants, in order that he could demand any such bribe amount. Therefore, the basis for seeking bribe is absent. Secondly, even if it is to be accepted that the complainant and his colleagues were defrauded into believing that the appellant was in a position to expedite the consideration of their case by the higher-ups in any manner, the evidence that is tendered in support of the demand and acceptance of bribe which is the sine qua non of the charge brought in respect of an offence punishable under Section 13(1)(d) and 13(2) of the PC Act, is absent in the present case on hand. It is on these two aspects that the learned counsel for the appellant would concentrate in taking this Court through the record. The same are as under:
Insofar as the first contention that having regard to the order passed by this Court in its writ jurisdiction, insofar as 16 directing the regularization of services of the lighting assistants on casual basis is not in dispute. In fact, the complainant himself has stated that in the first instance when he approached the appellant as regards the regularization of their services and the appellant having indicated that he would be in a position to expedite the process, if he was paid the bribe the complainant is said to have entrusted that since it was only the question of implementation of an order passed by this Court which was not under challenge and had become final which would indicate that the complainant and his colleagues were fully aware of the legal position and would have also understood the hierarchy of the officialdom in the organization to realize that the petitioner did not hold such a position where he was capable of extending any such favour of expediting the regularization of their services. Therefore, the very basis of the allegation that it was in order to expedite the regularization of their services that the appellant had demanded bribe and it was agreed to be paid is itself in grave doubt. The learned Counsel for the appellant 17 would also point out that the alleged trap that was executed was of 09.05.2000, whereas, it is not in dispute that the services of the complainant and his colleagues were duly regulazrised on 09.04.2001. Hence, without any influence being brought on any authority, the process had come about, which would give a lie to the allegation that the appellant was in any way capable of expediting the process, which has taken place in the usual course. The Learned Counsel would also submit that the reason behind the intention of the complainant and others in having brought such a false complaint and the further allegations of trap being laid etc., are for reasons best known to the complainant and others and the appellant was at a loss to even guess the reason for the same during his life time and the present legal representative of the appellant would not even be in a position to explain the possible reason for any such vexatious complaint having been brought. In any event, the manner in which the so called trap had been laid and the evidence that is sought to be adduced in support of the same 18 would not also stand the test of scrutiny and the evidence that is gathered would hardly be sufficient to establish the alleged charge of demand and receipt of bribe with any degree of certainty. It is pointed out from the evidence of several witnesses who are alleged to have been part of the trap, it is clear that it was only P.W.1, who was entrusted with the bribe amount and the cheque which was handed over to P.W.1 to meet the appellant and record the factum of demand and receipt of the said bribe amount and the cheque. It is also the case of the prosecution that P.W.1 was armed with a Compact Cassette Recorder in order to record the conversation at the time the demand was made and the money was paid. However, it is the case of P.W.1 that the Tape Recorder which was kept in his pocket had not recorded any of the conversation that took place, on the said complainant meeting the appellant at his residence as was arranged. It is only P.W.1 who entered the house of the appellant after he answered the door and there was none else present in the house. It is the case of P.W.1 that he 19 was made to sit on a cot while the appellant sat on an other cot and demanded whether he had brought the bribe amount and when the complainant answered in the affirmative, he then received the amount along with the cheque and had placed the same in a pouch. This was the statement made in the first instance. However, during the course of his cross-examination, he had made an inconsistent statement that after handing over the cash and the cheque, he had walked out of the house and there was no indication of any cash having been placed in a pouch. As recorded at page no.53, he has made inconsistent statements in the course of cross-examination as to whether the appellant kept the money and the cheque after he received it and that he had walked out of the house after handing over the same and then signaled the squad which was waiting outside and has also stated that he was not aware of what took place inside the house after the party entered the house and bolted the door from inside. It is at that stage of the cross-examination that he has been treated as a hostile witness and has been cross- 20 examined further by the prosecution. Therefore, the initial statements as to the manner in which the demand was made and the same was accepted is based only on the evidence of P.W.1 who has been treated as a hostile witness. There was no corroborating evidence of such demand and acceptance. There was no shadow witness in this particular case and the Tape Recorder was apparently a substitute for such a shadow witness. In the absence of any such recording of any conversation of demand and acceptance, the mere say of the complainant - P.W.1 coupled with the actual seizure mahazar which records that the appellant's fingers were washed with sodium carbonate solution to demonstrate that he had handled the tainted money, by virtue of a solution having been produced in Court, which had turned pink in colour after the appellant's fingers were washed in the same, is a possibility only if it was foisted on the appellant. This circumstance cannot be ruled out as it is the case of the prosecution that soon after PW.1 - complainant had signaled that he had allegedly handed 21 over the tainted money and the cheque, the police party had entered the house of the appellant and had bolted the door from inside. Therefore, the possibility of the several members of the team ensuring that the appellant's fingers were tainted with phenolphthalein powder and that they collected the solution after washing his fingers in sodium carbonate solution is a strong possibility in order to frame the appellant. As the team which had made elaborate preparations to carry out the so called trap would have been eager to successfully execute the same. Therefore, to hold that there was a demand and acceptance and actual receipt of money by the appellant at the relevant point of time is to accept the chain of events with several breaks in the links and in view of such inconsistency to hold that the appellant was guilty of demand and acceptance of bribe to bring the act within the scope of offences punishable under the provisions of the Prevention of corruption Act, 1988 would be to dilute the requirement of law that the prosecution ought to prove the charges beyond all reasonable doubt. 22 Therefore, the learned Counsel would submit that without anything more than these two aspects of the matter if scrutinized with reference to the material evidence on record, it is clear that there is no case made out by the prosecution on this primary aspect of the case and therefore, seeks that the judgment of the Court below which rests only on the evidence of P.W.1 and the trap mahazar to hold that the demand and acceptance of bribe has been established as being unreliable in the absence of an impartial independent witness to speak in support of the same. Incidentally, it is further pointed out that the panch witnesses who had accompanied the police party were the employees of the Coffee Board and an employee of a nationalized bank, respectively. The fact that these witnesses had arrived at the office of the CBI at 6.30 in the morning would indicate that there was prior intimation to these witnesses to be present at the office of the CBI and would also indicate that they were stock witnesses routinely employed by the police in this regard and therefore, the mere strength of any 23 such evidence tendered by the panch witnesses could not by itself establish the seizure mahazar which has been drawn up conveniently to suit the prosecution case and therefore, would seek that the judgment be set aside.
5. While the learned Senior Advocate Shri C.H.Jadhav appearing for the learned Counsel for the respondent would vehemently oppose the appeal and would reiterate that on the very same charges, the appellant having been found guilty of misconduct and the gravity of the charges being such that his pension and other benefits have been forfeited, there is little that the appellant could gain by resort to this appeal, as the appellant is no more. The satisfaction of being absolved, if that is the endeavour of the appellant in this case would also not survive. In any event, the judgment is a detailed judgment addressing all aspects of the case and rendered on a close analysis of the evidence on record, the mere argument that there was no official favour that could be extended by the 24 appellant to the complainant and others in order that he could demand and accept the bribe on the strength of statements made by the complainant and others that there was an order passed by this Court in a writ petition and therefore, there was nothing further that the appellant could do to ensure the expedition of regularization of their services, notwithstanding, it was the express assurance and threat of the appellant that he was in a position to stall any such benefit being conferred in favour of the complainant and others and having regard to the fact that there was already an inordinate delay in the implementation of the order that they were misled into believing that the appellant was capable of expediting the process of regularization. This indeed is the tenor of the complaint and it is not in dispute that there was already an order of this Court whereby the complainant and others were entitled to regularization of their services. It was the desperation of the complainant and others which was sought to be capitalised by the appellant and it is in that background that the complaint has 25 been lodged with the CBI in order to bring the appellant to book on account of his greed and his intention to exploit the complainant and others. It is in that vein that the Trial Court has also viewed the circumstance to contend that there was an order already and therefore, there was little that the appellant could do, is exactly the point the complainants were trying to make in asserting that the appellant was demanding money on the pretext that he could do an official favour for them and it is in order to bring him to book that a complaint has been made. Therefore, there was no inconsistency in the complaint having been made on the strength of the demand for bribe by the appellant.
Insofar as the contention that the demand and acceptance ought to have been proved beyond all reasonable doubt and that the evidence of P.W.1 by itself is not sufficient to bring home the charge is to ignore the seizure mahazar drawn up by the police who have no mala fides or other vested interest in 26 conducting the trap proceedings. If the argument that the statements made by the police authorities are to be treated as false statements, it would not be possible for the prosecution to bring home any charge in any case. The independence and integrity of the police is to be presumed unless it is otherwise demonstrated that there were mala fides and ill-will on the part of the police concerned in proceeding to frame the appellant, as is sought to be canvassed. It is also pointed out that there were independent witnesses. The fact that those witnesses had accompanied the trap party and that they had presented themselves at 6.30 a.m. at the CBI office by itself would not enable the appellant to characterize their presence as that of stock panch witnesses and that they had come there for a consideration. Having regard to the circumstances that the law requires an impartial panch witness who is also a Government servant to accompany the police party in order to establish the seizure and the trap proceedings, it is normal procedure to seek the assistance of such officers before hand and therefore, it is 27 not unusual that the panch witnesses had arrived at 6.30 a.m. at the CBI office on the day of the trap and that they had accompanied the police. Hence, to negate the entire seizure mahazar and the panch witnesses is to disbelieve the investigative process and to negate the veracity of the testimony of those witnesses off hand, which is not a presumption that is available to the appellant. The law on the other hand, ought to presume the fact unless proved otherwise. Therefore, the learned Senior Advocate would submit that the endeavour to trash the manner in which the trap has been conducted is not tenable and therefore, would plead that the appeal be dismissed in limini.
6. By way of reply, the learned Counsel for the appellant would submit that it is presumed on the part of the respondent to claim that the present legal representative of the appellant would have no further interest in the prosecution of the appeal as the deceased appellant had suffered an adverse order in civil 28 proceedings and it has attained finality. As already pointed out, the very case of the prosecution being not established beyond all reasonable doubt, if the judgment is indeed set aside on that ground, it is for the widow of the appellant to stake her claim to the benefits that may still be recoverable and therefore, it would be unjust to dismiss the appeal as having become infructuous. While he would reiterate his contentions as regards the primary requirements on the part of the prosecution to establish its case beyond all reasonable doubt.
7. Therefore on the above rival contentions and on a close examination of the record, it is not in dispute that the complainant and others were a few among several hundred employees similarly placed all over the country and the complainant and his colleagues were worldly wise and had gone through the writ proceedings insofar as their claim for regularisation of services were concerned. They were also fully aware of the hierarchy of the officialdom in the organization 29 and were keenly aware of the position the appellant held. Therefore, it was naïve to suggest that the appellant had defrauded them by creating a misconception, that he was in a position to engineer the expedition of regularisation of their services which ought to have emanated from a source elsewhere and which apparently was not within the reach of the appellant. It is not the case of the prosecution that the appellant was acting as a conduit for the higher-ups and was in a position to extend the benefits, if there was illegal gratification. The suggestion is only to the effect that the appellant had misled them or sought to mislead them into believing that he was in a position to expedite their regularization, if he was paid the illegal gratification. On the other hand, it is on record that the complainant protested in the very first instance on this very aspect and had even pointed out to the appellant that there was nothing more required to be done by the authorities except to implement the order of the Court and therefore, it would demonstrate that the complainant was fully aware that it was 30 not in the hands of the appellant to extend any such benefit except for illegal gratification. Therefore, on the first aspect it cannot be said that there is no substance in the contention of the appellant. This is a primary ingredient to further consider whether there was a possibility of an offence under the provisions of the Prevention of corruption Act, 1988. It is only then the next aspect as to whether there was a demand and acceptance of illegal gratification and whether the same has been established beyond all reasonable doubt would arise. Therefore, if on the very first aspect if there is a serious doubt as to the motive and the reason as to why the illegal gratification was sought, it is difficult to presume that there was any such demand and acceptance of bribe. The further allegation that there was a demand for a bribe of Rs.20,000/- and it was scaled down to Rs.10,000/- and further scaled down to receiving cash in a sum of Rs.3000/- and the balance by way of cheque is also difficult to accept. A seasoned official who had put in almost 30 years of service and if he was accustomed 31 to demanding and accepting bribes, he would also know that he could not possibly accept the illegal gratification by way of cheque and this is extreme naivety on the part of the prosecution even to suggest that there was such a possibility. The initial meeting at a restaurant in Palace Guttalli where the transaction is said to have been finalized is sought to be proved by producing the bill for the dinner which the complainant, appellant and another allegedly had in the course of discussion of the transaction. The bill itself has been produced after five weeks from the date on which the bill was issued. Curiously, immediately after the meeting at the restaurant, the complainant who was even then armed with the Compact Tape Recorder had met the Investigating Officer and appraised him of the meeting held at the restaurant and did not chose to hand over the bill for the dinner they had at that point of time when apparently he had handed the Tape Recorder to the Investigating Officer. He has thought it fit to produce the bill and hand it over after five weeks, as per the record, which 32 is unacceptable. Therefore, it leads to the suspicion that the same must have been got up for the purposes of the case of the prosecution. In any event, the production of a bill of the restaurant would not by itself establish the presence of the accused on that occasion. This apart, the trap conducted is also rife with confusion and inconsistencies. As seen from the record, it was P.W.1 alone who was employed in carrying out the exercise of handing over the bribe amount to the appellant. There was none else in that task. There was no shadow witness employed to accompany the complainant. The complainant according to his testimony had knocked on the door of the house of the appellant, who had been let into the house and he sat on a cot which was shown by the appellant and the appellant sat on an other cot and is said to have demanded whether he brought the bribe amount to which the complainant answered in the affirmative, and handed over the cash and cheque which according to the complainant was put in a pouch. However, in the course of evidence before the Court, he has 33 made inconsistent statements as to this sequence of events. It is at that stage that he was even treated as a hostile witness, even after his cross-examination was completed. The prosecutor with the permission of the Court proceeded to cross-examine him further as a hostile witness. This exercise would indicate that the evidence of the complainant itself was not above board, as he had sought to change his version as to the primary aspect of demand and acceptance and the manner in which the cash was allegedly received by the appellant. To add to this, after the complainant came out of the house of the appellant and signaled to the police party who had entered the house, it is the case of the complainant that he had remained outside and the police party had entered the house, bolted the door from inside. Therefore, what transpired within the house after it was bolted from inside is anybody's guess. Hence, the appellant's contention that he was framed in that, the entire process was engineered to project the appellant as having demanded and accepted and being in custody of the tainted notes and the 34 cheque is a make believe story which cannot be completely ruled out. Though there is much said about the panch witnesses as is sought to be explained by the Senior Advocate that in the circumstance of the case, the police would not be in a position to secure the presence of the panch witnesses unless there was a prior arrangement especially to ensure the presence of the panch witnesses which is crucial at an early hour of the day and the Government officials having been employed in that regard cannot be considered as a suspicious circumstance nor can the said witnesses be characterized as a stock panch witnesses in the absence of any material on record to show that they were indeed acting as a stock panch witnesses in several cases. In any event, insofar as the primary ingredients whether or not the prosecution established the case beyond all reasonable doubt insofar as the allegations punishable under the Prevention of corruption Act, 1988 are concerned, in the light of the above discussion, this Court is of the opinion that the primary ingredients which require to be 35 proved to establish the case in respect of charges beyond all reasonable doubt is not forthcoming. On the other hand, the evidence on record is inconsistent and would not be adequate to hold that the same has been established beyond all reasonable doubt.
In any event, it is held that the prosecution has failed to prove its case and accordingly, the appellant is acquitted and discharged of all such allegations. The fine amount if any, shall refunded to the legal representative of the appellant.
Sd/-
JUDGE KS / sh