Karnataka High Court
Ashok S/O Chennappa Madagunaki vs Lokayuktha Police Staiton Dharwad on 11 February, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 11TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1778/2007
BETWEEN:
ASHOK S/O. CHENNAPPA MADAGUNAKI,
MAJOR,
OCC: INCHARGE VILLAGE ACCOUNTANT,
OF KALWAD VILLAGE,
TALUK NAVALGUND,
DIST: DHARWAD
AT PRESENT R/O. SIDDAPUR ONI,
NAVALGUND,
DIST: DHARWAD.
...APPELLANT
(BY SRI V.G.BHAT, ADVOCATE)
AND
LOKAYUKTHA POLICE STATION,
DHARWAD.
... RESPONDENT
(BY SRI.M.B.GUNDWADE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. BY THE APPELLANT AGAINST THE
JUDGMENT DATED 31.10.2007 PASSED BY THE PRL.
SESSIONS AND SPECIAL JUDGE, DHARWAD IN SPL.(SVC)
C.C. NO.4/2000 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7
AND 13(1)(D) R/W SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND SENTENCING HIM TO
UNDERGO R.I. FOR ONE YEAR AND TO PAY A FINE OF
RS.2,000/- I.D. TO UNDERGO S.I. FOR THREE MONTHS
FOR THE OFFENCES PUNISHABLE UNDER SECTION 7 OF
THE PREVENTION OF CORRUPTION ACT, 1988 AND
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FURTHER SENTENCING HIM TO UNDERGO R.I. FOR ONE
YEAR AND TO PAY A FINE OF RS.2,000/-I.D. TO UNDERGO
S.I. FOR THREE MONTHS FOR THE OFFENCE UNDER
SECTION 13(1)(D) PUNISHABLE UNDER SECTION 13(2) OF
THE PREVENTION OF CORRUPTION ACT, 1988 BOTH THE
SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated 31.10.2007 passed by the Prl.Sessions and Spl. Judge, Dharwad in Spl.(SVC) C.C. No.4/2000 convicting the appellant/accused for the offence punishable under sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and sentencing him to undergo R.I. for one year and to pay a fine of Rs.2,000/- I.D. to undergo S.I. for three months for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 and further sentencing him to undergo R.I. for one year and to pay a fine of Rs.2,000/-i.d. to undergo S.I. for three months for the offence under Section 13(1)(d) punishable under Section 13(2) of the Act, 1988. Both the substantive sentences are directed to run concurrently.
2. It is the case of the prosecution that the complainant is an agriculturist in Kalwad Village of -3- Navalgund Taluk and he had taken loan from the Syndicate Bank and had offered his land bearing Survey No.428 measuring 9 acres 01 guntas as security. After 15 days of clearing the loan, he went to the office of the accused who is a Village Accountant of Kalwad Village along with a letter from the Bank stating that he has cleared the loan and when the complainant requested the Village Accountant on 24.06.1999 to remove the encumbrance on the said land the accused demanded a sum of Rs.200/- as bribe. The complainant told the accused that he is a poor man and unable to pay that much of amount. Thereafter, the accused demanded Rs.100/- as the minimum bribe. Since the complainant was not interested to get his work done from the accused by paying bribe amount, he approached the Lokayukta Inspector and lodged the complaint.
3. On the basis of the complaint to the Lokayukta a trap was laid on the accused on 26.08.1999 at about 14.00 hours and thereafter it is the case of the prosecution that the complainant and the trap party went to the office of the accused where he demanded the aforesaid amount of Rs.100/- from the complainant Krishna S/o. Basappa Somapur as illegal gratification other than the legal remuneration for showing official favour i.e. lifting of the -4- encumbrance on the lands of the complainant bearing Sy. No. 428 measuring 9 acres 01 guntas of Kalwad Village. The accused had accepted the sum of Rs.100/- on the said date 26.08.1999 as a motive or reward for the said work which was illegal gratification thereby the accused is alleged to have committed an offence under Section 7 of the Act.
4. It is further charged against the accused that being a public servant in the capacity of Village Accountant of Ballarvad Village and in charge of Kalwad Village, Navalgund Taluk he has accepted an illegal amount of Rs.100/- by misusing his official position as such public servant from the complainant-K.B.Somapur for showing the official favour viz., lifting of the encumbrance on the property of the complainant thereby the accused is alleged to have committed the offence under Sections 13(1)(d) r/w 13(2) of the Act.
5. In order to prove the case, the prosecution has examined in all, six witnesses and produced documents as per Exs. P1 to P19 and also produced MOs.1 to 17. The defence of the accused was one of total denial. He has stated in his first statement before the Lokayukta Police which is marked as Ex.P6 that the complainant had taken a loan of Rs.100/- and the said amount has been returned by -5- the complainant on that day which he has accepted. He has further stated that he has not taken any money as illegal gratification and further he has stated that he has no connection with the case at all. He has also stated that he has never demanded any money at any point of time. However, the learned Special Judge after appreciating the evidence of the prosecution witnesses has held that the prosecution has established the case against the accused beyond reasonable doubt and has convicted and sentenced him accordingly. The convicted accused has filed this appeal.
6. Heard Sri.V.G.Bhat, learned counsel for the appellant and Sri.M.B.Gundwade, learned counsel for the respondent.
7. Learned Counsel for the appellant submits that at the very outset removing the encumbrance from the documents is not the duty of the Village Accountant and that the Village Accountant has no authority to mutate the records or to delete the charge over a property. These duties are entrusted to Tahsildar as per Rule 62 of the Karnataka Land Revenue Act. He further submits that as per Ex.P5 as on the date of trap, work was already done which is evident -6- from Ex.P5 and therefore, there was no occasion for the accused to demand any illegal gratification. It is also further submitted by him that the complaint given by the complainant does not bear his signature and therefore the entire proceedings subsequent to complaint Ex.P1 is the nullity in law.
8. It is also further submitted by him that there is no proper applciation of mind in the sanction order passed by sanctioning authority viz., PW.4- the Deputy Commissioner of Dharwad District. It is further submitted that PW1 has turned hostile to the case of the prosecution and that the evidence of PW.10 is not corroborated by evidence of the shadow witnesses PW.2 and also PW.3 since PW1 the complainant states that the accused was not found in his office and therefore they went in the bus stand in search of accused whereas PWs.2 and 3 do not speak about the accused being searched in the bus stand nor about their going to the office first and due to his non availability in the office, they had gone to the house of the accused. It is submitted that there is gross discrepancy in the narration of the trap between the evidence of PWs.1, 2 and 3 and the prosecution having treated PW.1-complainant as hostile, the -7- accused cannot be convicted and that he is entitled to an order of acquittal.
9. It is also his submission that though the accused is alleged to have demanded the bribe on 24.06.1999, PW-1 approached the Lokayukta on 26.08.1999 after a lapse of more than two months and no proper explanation is given for the said delay. Hence, it is his submission that the entire prosecution case is doubtful entitling the accused an order of acquittal.
10. Sri.M.B.Gundwade, learned Counsel for the respondent Lokayukta on the other hand submits that so far as the delay is concerned, the complainant had gone to the office of the accused on 24.06.1999 and that he has negotiated for the amount to be paid and the accused has settled for Rs.100/-. The accused had thereafter informed the complainant that it would take 1½ months for the deletion of the encumbrance to be effected in the RTC and therefore, the complainant again approached the accused after 1½ months and even after the lapse of 1½ months, the accused had not given the documents as requested by the complainant, it is only on 26.08.1999, that the complainant came to know that the accused was still insisting on the -8- bribe amount and it is on that day that he has approached Lokayukta. The prosecution has properly explained the delay in filing the complaint. So far as signature of the complainant in the complaint is concerned, the learned Counsel submits that Ex.P2 has been prepared in the presence of the complainant himself and Ex.P2 FIR contains the signature of the complaint and both Exs.P2 and P1 were transmitted to the Special Judge in a sealed cover on 26.08.1999 itself. The learned Special Judge has made an endorsement in Ex.P2 to the effect that the same has been opened from the sealed cover on 10.09.1999, and in Ex.P1 the signature of the Special Judge is found and the date as 10.09.1999 mentioned by the learned Special Judge. It is also his submission that the sealed cover through which Ex.P1 and P2 were sent is a part of the Court record which is marked as Ex.P13. It is his submission that Ex.P13 contains the endorsement of the Special Judge stating that sealed cover was received at 4.45 p.m. through S.B.Muttagi, Head Constable of Police Lokayukta, Dharwad. Hence, he submits that there is absolutely no confusion or discrepancy in the absence of signature in Ex.P1. So far as the submission of the learned Counsel for the appellant that the Village Account has no authority to mutate the document as -9- per Rule 52 of the Karnataka Land Revenue Act, learned Counsel for the Lokayukta submits that the common man would not know as to with whom the power is vested and it is the common knowledge that the Village Account is the official who has to be approached so far as the mutation is concerned and the Village Accountant would further forward the papers to the Tahsildar and it is the internal distribution of work between the Tahsildar and the Village Accountant. He has drawn the attention of the Court to Section 7(d) of the Act which states that if a person who receives a gratification as a motive or reward for doing what he does not intend or is not in a is a position to do, or has not done, comes within this expression. It is the submission of the learned Counsel for the Lokayukta that it is not the case of the accused that he has disclosed to the complainant at the out set that he is not an authority to effect the mutation or deletion of encumbrance in the RTC and therefore having received the gratification by representing himself as the person who is authorised to do the work, offence under Section 7 of the Act is attracted.
11. Learned Counsel further submits that so far as Ex.P5 is concerned, the said document indicates the entry made in respect of the application filed by the complainant
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and it is not a document showing that the work has been done. The column No.4 of the said Ex.P5 is blank which indicates that the work has not been completed and therefore Ex.P5 will not come to the help of the accused. So far as the sanction is concerned, it is the submission of the learned Counsel that PW.4 has categorically stated before the Court that she has perused all the documents produced along with the papers by the Lokayukta Police and after scrutinizing the same and being satisfied herself that the accused has committed the crime, she has granted the sanction. Therefore, it is his submission that the prosecution has proved the case against the accused and that there is no merit in this appeal and the same may be dismissed.
12. The prosecution in this case commenced with the filing of the complaint by K.B.Somapur on 26.08.1999 before the Lokayukta Dhawad. In the said complaint which is marked as Ex.P1, it is stated by the complainant that he is the owner of land in Sy.No.428 measuring 09 acres 01 guntas and on the said land he had taken loan from the Syndicate Bank and about 15 days back, he had repaid the entire loan amount and has obtained a clearance certificate. He had approached the Village Accountant of Kalwad Village
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along with an application dated 24.06.1999 to remove the encumbrance from the said property. Accused-Madagunaki who is the Village Account of Kalwad Village was approached by him for the said work and at that time the accused told him that he would do the work if he is paid Rs.200/- as bribe otherwise he will not do the work of the complainant. But the complainant informed him that he is a poor person and that he is unable to pay that much amount and requested him to reduce the same. Whereafter, the accused told him to give a bribe of Rs.100/- and if the said amount is paid he would do the work otherwise he will not do the work. Since he was not interested in paying the bribe and getting the work done, he has approached the Lokayukta Police along with a sum of Rs.100/- for giving as bribe.
13. Based on the above complaint, the Police Inspector of Karnataka Lokayukta, Dharwad registered a case in their Crime No.10/1999 for offences under Sections 7, 13(1)(D) r/w Section 13(2) of the Act and transmitted the complaint along with the FIR in a sealed cover to the Special Court viz., Prl. District and Sessions Judge and Special Judge, Dhawad District on 26.08.1999 as per the endorsement found in Ex.P13, the cover sent by the Inspector to the Special Judge. Based on the above
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complaint, the Inspector of Police prepared an entrustment Panchanama by securing one Shivakumar B. Hiremath working as SDA in Minor Irrigation Department and one Hanumanth retired Government Servant of MRBCC., (Malaprabha Right Bank Cannel Construction Circle) Dharwad. Thereafter an entrustment Panchanama as per Ex.P3 was prepared and Rs.100/- note which was brought by the complainant was smeared with Phenolphthalein powder and demonstration of the hand wash of the complainant was made in the office of Lokayukta Inspector. Thereafter, after completion of entrustment Mahazar Ex.P3, a trap was laid on the office of the accused.
14. PW.1 is the complainant. He has reiterated the averments made by him in the complaint before the Court. He has stated that loan of Rs.32,000/- was taken by him from the Syndicate Bank, Navalgund Branch and that he had subsequently cleared the same. At the time of taking the loan his property bearing Sy.No.428 measuring 09 acres 01 gunta was subjected to mortgage and an entry was made in the revenue records of the survey number. After clearance of the entire loan, Syndicate Bank has issued a clearance certificate and with the said clearance certificate, he approached the accused-Village Accountant for deletion of
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the entry made in the rights column. He had stated before the Court that on 24.06.1999 he gave an application to the Village Accountant and requested the accused to delete the entry in the revenue records and to issue fresh revenue record after deletion the encumbrance. It is in the evidence of PW.1 that accused demanded a sum of Rs.200/- to do the work. He negotiated for the lesser amount and the accused came down to Rs.100/-. Accused demanded Rs.100/- from him as bribe and since he was not having the money he approached the Lokayukta on 26.08.1999 and thereafter Lokayukta received his complaint as per Ex.P1. He has identified Ex.P1 as the complaint and has stated that the Inspector has not asked him to put his signature and therefore there is no signature on Ex.P1 though he was asked to put his signature in other papers. He has stated before the Court that from the reading of the contents of Ex.P1 he says that it is his own complaint irrespective of the fact that the said complaint does not bear his signature. PW.1 identified his signature in the FIR - Ex.P2 and his signature is marked as Ex.P2(a). The Police Inspector thereafter on completion of the entrustment Mahazar took PW1 and other shadow witness so also his officials in the departmental jeep to the office of the accused in Navalguna.
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Himself, Police Inspector, CW-2- Shivakumar B. Hiremath and co-panch - Hosur and the staff of Lokayukta proceeded in the said jeep and the same was parked near Shankar Arts College at Navalgund. The Police and himself got down from the jeep. They reached Navalgund after 3.30 p.m. The Police Inspector instructed him and the Lokayukta Police to go and approach the accused and enquire about his work and if the accused still repeats his demand then to give the bribe amount to him. Himself and Lokayukta Police searched for the accused in bus stand. The accused was not there. Then they went to the Tahsildar's office. There also accused was not found. Then they went to the room of the accused. The accused was found in the room. He requested the accused to furnish the revenue records of the land to find out whether the encumbrance of the Syndicate Bank has been deleted. The accused demanded Rs.100/- as bribe amount from him to do his work. PW1 handed over Rs.100/- note to the accused who received it in his right hand and placed in his shirt pocket. The accused has not verified the said note by holding it with two hands. At that time Pancha-Hiremath was standing on the door of the room of the accused. Thereafter, he has given pre-instructed signal by removing his cap to the Lokayukta Police.
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Immediately Inspector came and questioned the complainant, the Inspector caught hold of both the hands of the accused. Thereafter by showing his identity the amount was recovered from the shirt pocket of the accused and subsequently trap panchanama was prepared in the presence of the shadow witness and also another panch witness. PW.1 has identified the note as MO.1 and also the cover in which the MO.1 was kept as MO.12. Thereafter, hand wash of the accused was taken in the Sodium Bicarbonate solution which turned to Pink colour on dipping the fingers of the accused.
15. This PW.1 has been treated as hostile by Public Prosecutor on the ground that PW.10 has stated that accused had removed the note from the shirt pocket before his hand was washed in the Sodium Bicarbonate solution and he was cross examined by the Public Prosecutor. In the cross examination, he stated that at the first instance, hand wash of the accused was taken into the bowl and thereafter the currency note was obtained.
16. PW.2- Shivakumar is the shadow witness. He has also stated regarding the entrustment Mahazar and also the trap laid down on the accused on 26.08.1999. However,
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in so far as his accompanying PW.1 to the office of the accused he has stated that they reached Navalgund at 4.30 p.m. and the jeep was parked near Government Hospital, Navalgund. Thereafter Inspector instructed them regarding the trap and the complainant took him (PW-2) to the room of the accused. The co panch and the Lokayukta Inspector along with staff were watching and waiting near the room of the accused. When they went to the room of the accused, accused was very much present in the room. Thereafter when the complainant enquired with the accused regarding his work, the accused again demanded bribe. The accused accepted the same with both the hands and kept in his shirt pocket. Thereafter, the complainant gave the pre instructed signal by removing his cap. PW.2 says that he has heard the conversation between the complainant and the accused by standing in a distance of three feet away. He has also stated that he has seen the complainant handing over the currency note of Rs.100/- to the accused. This PW.2 has also stated about the drawing of the trap Mahazar and has identified his signature so also the note found in the shirt pocket of the accused. However, this PW.2 is also treated as hostile by the Public Prosecutor on the ground that he has resiled from the statement given by him under Section 161 of Cr.P.C with
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reference to MOs.10 and 11 which are hand wash of the accused. PW.2 has not identified MOs.10 and 11 before the Court and to that extent he has been treated hostile by the prosecution.
17. PW.3 is the Head Constable of the Lokayukta Police Station who was done entrusted with the work of handing over the FIR and the complaint in a sealed cover to the Special Judge and accordingly he has handed over the same to the Court on 26.08.1999.
18. PW.4 Smt. Vandana Gurnani, was the Deputy Commissioner of Dharwad during the relevant period who has scrutinized the papers forwarded to her for according sanction to prosecute the accused and accordingly after being satisfied that an offence is made out, she has granted sanction as per Ex.P14 to prosecute the accused.
19. PW.5 - Hanumantha F. Hosur is a Government Servant who has acted as Co Panch. However, this witness has been treated as hostile by the prosecution. So far as their going to the office of the accused, he has stated before the Court that at about 12.00 to 12.30 p.m. the police stopped the jeep at a distance of 100 meters from the residence cum office of the accused, the complainant was
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asked to go and approach the accused. The complainant alone went to the office cum residence of the accused himself, Lokayukta staff and another Panch-Hiremath were standing near the jeep. Complainant came out of the office of the accused and gave a pre instructed signal, whereafter the accused was got trapped and the further proceedings were conducted. The Public Prosecutor has cross-examined this witness. However, in the cross examination he has admitted certain facts through the suggestion made by the public prosecutor to which he has replied with a prefix "It is true that......". He has improved his version regarding the trap in para-10 of his evidence before the Court.
20. PW.6 - Somappa is the Dy.S.P. Lokayukta, Bagalkot who has stated the entire case of the prosecution right from the day of receiving the complaint on 26.08.1999, whereafter, he has registered a case in Crime No.10/1999 under Section 7 and 13(1)(d) r/w Section 13(2) of the Act and subsequently, the laying of the trap after preparation of entrustment Mahazar and also the conduct of investigation in this case, sending the samples to Forensic Laboratory, and ultimately filing of the charge sheet. It is from the aforesaid evidence of the prosecution witnesses that the
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learned Special Judge has found the accused guilty and has convicted him.
21. On a careful consideration of the entire materials produced by the prosecution, I am of the considered opinion that all the three important witnesses have been turned hostile by the prosecution. It is the case of the complainant that when they went to the office of the accused he was not found and therefore he went to the bus stand and thereafter he went to the room of the accused where he found the accused. PW2 being a shadow witness ought to have corroborated the evidence of PW.1 in so far as searching for the accused in the bus stand so also PW.5. PWs.2 and 5 gave a clear go by to the case of PW.1 regarding searching of the accused in the bus stand. Further, PW.5 in his evidence states that complainant alone went to the office cum residence of the accused which is not the case either of PW.1 or PW.2. Thereafter so far as laying the trap is concerned, there is discrepancy in the prosecution witnesses. So far as the complaint is concerned, the said complaint Ex.P1 does not contain the signature though FIR does contain the signature of the accused. In the complaint, it is stated that 15 days back he had cleared the loan amount of Syndicate Bank. However, the said complaint is
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dated 26.08.1999. It is nobody's case that 15 days prior to 26.08.1999 the complainant has approached the accused. It is the case of the complainant that he had approached the accused on 24.06.1999, this complaint Ex.P1 was given in the hands of PW.6 who is a Police Inspector of Karnataka Lokayukta and the Inspector has endorsed that it has been given before him and signed on Ex.P1. Under the circumstance, it is hard to believe that a Senior officer of the cadre of PW6 would not have taken the signature in Ex.P1. Technically speaking the absence of signature in Ex.P1 is not a ground to disbelieve the version contained in Ex.P1. All that one can say is that something is amiss from the institution of the compliant in this case. Having regard to the discrepancy in the statement of the witnesses PWs.1, 2 and 5 this has got a direct bearing to the time at which Ex.P1 was prepared and the absence of signature in Ex.P1 gets significance in view of half-hearted support of these witnesses to the case of the complainant. The Act is very stringent law under which minimum sentence is imposed for the offences. Under the circumstance, I am of the considered opinion that any lacuna in the case of the prosecution should enure to the benefit of the accused and in this case, I am of the opinion that the lacuna in the non
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corroboration of version by PWs.1, 2 and 5 certainly enures to the benefit of the accused and therefore it cannot be said that the prosecution has established the case against the accused beyond reasonable doubt.
22. In that view of the matter, on a careful consideration of the entire material on record, I am of the opinion that the prosecution has not proved the case against the accused beyond reasonable doubt and therefore, the accused is entitled to be acquitted of the offences.
23. In the result, the appeal is allowed. The order of conviction and sentence passed against the accused is set aside and he is acquitted of all the offences charged against him. The bail bonds executed by him is discharged. Fine amount if any paid, shall be refunded to him.
Sd/-
JUDGE Bs