Karnataka High Court
Shri Ajidsaheb Nabisab Mulla vs The Karnataka Lokayukta on 8 September, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.1331/2011
BETWEEN:
SHRI.AJIDSAHEB NABISAB MULLA,
AGED ABOUT 41 YEARS, OCC : TRAFFIC INSPECTOR,
DEPOT-2, NWKRTC BELGAUM, R/O.BELGAUM.
... APPELLANT
(BY SRI.ASHOK.R.KALYANASHETTY, ADVOCATE)
AND
THE KARNATAKA LOKAYUKTA,
BY IT'S LOKAYUKTA POLICE, BELGAUM,
LOKAYUKTA OFFICE, M.S.BUILDING,
BANGALORE-560 001.
... RESPONDENT
(BY SMT.NIRMALA S.SUTAGATTINGMATH, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING THAT, SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 21/22.12.2011
PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND SPECIAL JUDGE (PCA), BELGAUM IN SPECIAL
CC.NO.37/2008 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 7 & 13(1)(d)
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READ WITH SECTION 13(2) OF PREVENTION OF CORRUPTION
ACT, 1988.
THIS APPEAL BEING HEARD COMING ON FOR DICTATING
JUDGMENT THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant/accused being aggrieved by the judgment and order of conviction and also the sentence dated 22.12.2011 passed by the IVth Additional District and Sessions Judge and Special Judge (PCA), Belagavi in Special C.C.No.37/2008.
2. By the judgment and order of conviction appellant/accused herein was convicted for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and he was sentenced to under go rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- and in default of payment of fine amount simple imprisonment for a further period of two months, for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and he :3: was also sentenced to under go rigorous imprisonment for a period of two years and to pay fine of Rs.7,000/- and in default of payment of fine amount simple imprisonment for a further period of three months for the offence punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
3. Brief facts of the case of the prosecution as per the complaint averments that, PW-1 the complainant one- Rajashekhar Shivaputrappa Horakeri lodged the complaint on 17.05.2007 before the Lokayukta police, alleging that, he was working as a conductor in NWKRTC, Belgaum in Depot No.2 and he was residing at Renuka Nagar, Vantamuri Cross, Belagavi. The higher officer of the complainant is one Mr.A.N.Mulla, and he was the Traffic Inspector, he is the person who is assigning the duty to the complainant and after attending the duty he has to sign of the way-bill and after his signatures only the cashier will accept the collected amount. The said Traffic Inspector used to collect Rs.200/- per month from each of :4: the conductors, if the amount is paid immediately he has signed on the way-bill and he was allotting the duty as desired by the conductors. Therefore they were making the payment of Rs.200/- p.m. As the complainant not feeling well for a period of two months, he remained absent and thereafterwords he attended the duty on 07.04.2007. After he attending the duty the Traffic Inspector Sri.A.N.Mulla asked him to pay the bribe amount, complainant told that, he is in trouble and he will pay the amount after two months, but even then the said Traffic Inspector was giving trouble to him, complainant tolerated and he was doing his duty on 16.05.2007 the said Traffic Inspector asked the complainant that, he has to pay the amount for the two months for which he remained absent and subsequently three months, so totally he has to pay Rs.1,000/- to him, if he did not pay the amount he will give the trouble to him in assigning the duty and also while paying the collected amount to the cashier for that, the complainant told that today he was not having the amount i.e., on 16.05.2007. On :5: 17.05.2007 after attending to his duty he will go to his house and bring the amount and he will pay the same for that, the accused person herein agreed and put the signature on the way-bill of the complainant. Therefore as the complainant is not willing to pay the bribe amount to the accused person, he came to the Lokayukta office and lodged the complaint and he has requested to take legal action against the said accused person. He has also mentioned in the complaint that, the amount of Rs.1,000/- as demanded by the accused person, he has also brought that amount and he will produce the same as and when directed. On the basis of the said complaint, a case came to be registered for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in the respondent Lokayukta (Belagavi) Crime No.7/2007.
4. Thereafterwords as per the case of the prosecution entrustment mahazar was conducted in the office of Lokayukta and trap was also conducted wherein :6: the accused person herein caught read handed when he received the bribe amount. After completing the investigation the Investigating Officer filed the charge sheet against the accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
5. The learned Special Judge after hearing both sides framed the charge against the appellant/accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, as the appellant/accused pleaded not guilty and claims to be tried, then the matter was posted for trial.
6. Prosecution in support of its case in all examined 8 witnesses as PW-1 to PW-8 and got marked the documents as per Ex.P.1 to Ex.P.28, so also got marked the material objects i.e., MO.1 to Mo.9 and closed its side. On the side of the defence, DW-1 was examined and no documents were produced on behalf of the defence. :7:
7. After hearing the arguments on both sides the learned Special Judge held that, prosecution proved its case beyond all reasonable doubts for the said offences and convicted the appellant/accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
8. Being aggrieved by the said judgment and order of conviction and also challenging the legality and correctness of the said judgment, the appellant/accused preferred the appeal before this Court on the grounds as mentioned in the appeal memorandum from ground Nos.4 to 24.
9. Heard the arguments of the learned counsel appearing for the appellant/accused, so also arguments of the learned Special Public Prosecutor appearing for the respondent/Lokayukta.
10. The learned counsel for the appellant/accused made the submission that, prosecution utterly failed to :8: prove its case beyond all reasonable doubts. He made the submission that, the demand and acceptance of the bribe amount is not at all established by the prosecution with acceptable, cogent and satisfactory material. He made the submission that, even looking to the oral evidence of PW- 1/Complainant, PW-4/shadow-witness, the demand of bribe amount by the appellant from the complainant is not at all established. He also made the submission that, looking to the contents of trap mahazar Ex.P-13, so also the oral evidence of PW-1 and the Investigating Officer, there is no consistency in the evidence of the prosecution there are conflicting versions by each of them. Therefore he made the submission that, itself clearly goes to show that, prosecution not proved its case beyond all reasonable doubts. It is also his submission that, when the main allegation itself is that, the appellant has demanded the bribe of Rs.200/- per month from each of the conductors and during the course of evidence it was transpired through the evidence of PW-1 that, like the complainant nearly 150-200 conductors were also paying Rs.200/- per :9: month bribe amount to the appellant/accused. The Investigating Officer ought to have examined some of the employees of the KSRTC Department and he ought to have collected some material in that regard. He also made the submission that, PW-1 stated in his evidence that, he has complained about the same to the Depot Manager also and he went along with three other persons whose names are also mentioned. But even then the Investigating Officer has not at all recorded at-least the statement of those persons whose names are mentioned in the evidence of PW-1. Therefore, learned counsel submitted that, sofar as this demand is concerned, except the say of the PW-1 there is no other material to support the said contention. Learned counsel further made the submission that, looking to the prosecution material and the evidence of PW-1, even the time at which the complainant went to the Lokayukta Office and at which time the pancha-witnesses went to the Lokayukta Office, there is no consistency in the evidence of prosecution witnesses. It is also his contention that, it has come on record through the : 10 : evidence of PW-1, the Investigating Officer and contents of entrustment mahazar, so also the trap mahazar that, before going to the office of the appellant/accused herein the Investigating Officer gave the tape-recorder to the complainant with instructions to him that, when he goes to the office of the accused, he has to record the conversation between himself and the accused person. Learned counsel also submitted that, though it has come on record that, the Investigating Officer has seized the said tape-recorder in the presence of panchas, Ex.P-13 trap mahazar. Even then while filing the charge sheet he has not produced the tape-recorder before the trial Court withheld the main material from the notice of the trial Court. It is also his submission that, even though it is the prosecution case that, the present accused person was the authority over the complainant to assign the duties and to sign the way-bills of the conductors, but prosecution has not placed the acceptable material in this regard. He also made the submission that, on the contrary the evidence of DW-1 very employee from the KSRTC clearly deposed in : 11 : his evidence that, the present appellant was not at all allotting the duty and signing the way-bills. Hence he made the submission that, this evidence also goes to show that, there is no material placed to show the allotment of duty to the conductors and signatures to be made on the way-bills. Hence he submitted that, prosecution failed to prove this aspect also. It is also his contention that, no doubt the accused person offered his explanation as per Ex.P-12, but merely receiving the amount from the complainant, itself is not sufficient unless and until the demand of said amount received by way of bribe to favour the complainant. Hence he submitted that, even if it is the case of the prosecution that, the amount is seized from the possession of accused that itself is not sufficient to come to the conclusion that prosecution proved its case beyond all reasonable doubts.
11. Hence, the learned counsel made submission that, even on that aspect also, the prosecution cannot be said to be successful in establishing said fact. The counsel : 12 : also made submission that, looking to the evidence of Investigating Officer, wherein he has stated that, the complainant after coming to the Lokayukta Office gave his oral complaint first it was taken on the white paper, thereafterword it was got typed through the computer. He made the submission that, the complaint taken on the white paper is not placed before Court. He submitted that, the said fact assumes importance in view of the evidence of PW-4 that, at 1.00 p.m. on 17.05.2007 he came to know that, their office received the intimation for asking to send one witness to their office. Hence, he submitted, looking to this evidence PW-4 and the time it goes to show that, even earlier to the complainant approaching to the Lokayukta Office everything was discussed and kept ready and arrangements were also made in this regard. Therefore he submitted that, looking to the entire prosecution material reasonable doubt arises as per grounds of the prosecution, whether things have taken place in the manner as projected by the prosecution. Hence he submitted that, these aspects both oral and : 13 : documentary and the legal aspect in that connection were not considered by the learned Sessions judge and wrongly read the evidence and wrongly came to the conclusion in convicting the appellant/accused. Regarding the sanction, the learned counsel made submission that, the authority PW-3 infact was not the competent person to issue the sanction order and in that connection learned counsel refers to the documents produced by the prosecution itself and he made submission that, on the day the sanction issued, he was not the authority having the power to issue the sanction order and even he made the submission that, the sanction order is without application of mind of the said authority and mechanically and as requested by the Lokayukta Police the sanction order was issued. Hence on these above grounds the learned counsel made submission that, the judgment and order of conviction passed by the learned Special Judge is illegal and it is not sustainable in law and appeal be allowed, judgment and order of conviction sentence imposed by the learned Special Judge : 14 : be set aside, appellant/accused be acquitted of all the charges.
12. Per Contra, the learned Special Public Prosecutor made submission that, sofar as demand and acceptance of bribe amount is concerned, there are averments in the complaint Ex.P-1 that, the appellant/accused was demanding bribe amount of Rs.200/- per month not only from the complainant but from all the conductors. She also made submission that, in the entrustment mahazar it is mentioned, so also in the oral evidence of PW- 1/complainant and PW-4 the shadow-witness, they have consistently deposed that, the accused person demanded bribe amount when complainant and the shadow-witness approached, and she further made submission that, looking to the evidence of PW-4 the shadow-witness, he deposed on oath, he and complainant gone to the office of the accused, the accused demanded bribe amount from the complainant in his presence, he heard it and then complainant paid the amount of Rs.1,000/-, the notes : 15 : smeared with phenolphthalein powder and after receiving the said amount the accused counted the notes from both of the hands and then he kept the said amount in the 3rd compartment of almirah. Learned Special Public Prosecutor also made submission that, even looking to the cross-examination of PW-1 and 4 even though it is lengthy cross-examination, so far as demand and acceptance of bribe amount is concerned, nothing has been elicited from their mouth, to disbelieve their version about the said aspect. Learned Special Public Prosecutor further made submission that, it is not only in the oral evidence of PW-1 and 4, the proceedings i.e., entrustment mahazar and also the trap mahazar also supports the case of the prosecution. She made submission that, the amount was recovered from the possession of the accused and it is he took amount in the almirah and produced before the Lokayukta Police. When the hand wash of both hands was taken in two bowls containing sodium carbonate solution, the solution turns into the pink colour. Learned Special Public Prosecutor made submission that, regarding the : 16 : presence of phenolphthalein in the hand wash there is a chemical examiner report i.e., FSL report and looking to FSL report also in the opinion column at the last the laboratory expert clearly opined that, "the presence of phenolphthalein seen in the both right and left hand finger washes of the AGO". Therefore she made submission that, if he has not received the bribe amount which was smeared with phenolphthalein powder then there was no reason for hand wash of the accused turning into the pink colour. It is also submission of the learned Special Public Prosecutor that, after completion of the trap mahazar the Lokayukta Police asked the accused person whether he wanted to offer any explanation about the amount what was recovered from his possession and even for that, the accused person offered his explanation as per Ex.P-12, referring to the said document the learned Special Public Prosecutor made submission that, he has mentioned that, as the complainant asked to keep the amount with the appellant/accused and he will take back on the next day, if it is so, even this also there was no reason of turning the : 17 : hand wash of the accused and its turns into pink colour. Therefore she made submission that, the explanation of the accused cannot be accepted and this only with intention to escape from the clutches of law taking such false explanation. She also made submission that, the Investigation Officer who conducted the investigation also deposed in his evidence that, he has collected the material by way of statement of witnesses, therefore it also supports the case of the prosecution regarding the documents evidence to show that, the accused person was allotting the duty to the conductors and he used to sign on the way-bills before the amount collection by the conductors were handed over to the cashiers. Though the Investigating Officer has made the sincere efforts, documents not available in this connection. Learned Special Public Prosecutor made submission that, this accused person who was having those documents he ought to have produced before Investigating Officer. Hence she submitted that, inspite of sincere efforts by the Investigating Officer when the documents were not : 18 : available, he investigated only on that basis, the other material collected by the Investigating Officer cannot be ignored by this Court. She also made submission that, there is evidence through the mouth of the prosecution witnesses that, the accused person was assigning the duty to the conductors and he used to put his signature on the way-bills of the conductors before the cash collected to handing over to the cashier an ample material placed by the prosecution. Hence it cannot be said, prosecution has not established this fact with sufficient material regarding his sign is concerned. Learned Special Public Prosecutor made submission that, the evidence of PW-3 is acceptable it is consistent and the PW-3 has deposed in his evidence he was the authority to issue the sanction order. The Special Public Prosecutor also made submission that, even if there is defect in the sanction order, before this Court in the appeal proceedings same cannot be challenged by the appellant/accused about the validity of the sanction order. She also made submission that, before the trial Court when the said document was tendered in his evidence : 19 : which was marked and admitted, no objection was raised by the appellant/accused. When that is so in these proceedings its validity cannot be challenged in this connection. Learned Special Public Prosecutor draw the attention of this Court to Section 19 proviso to the Prevention of Corruption Act. Hence she made submission that, looking to the entire material placed on record, it makes out a case.
13. So far as the tape recorder is concerned, the learned Special Public Prosecutor submitted that, it is made clear through the evidence of PW-1 that, conversation was not at all recorded in the tape recorder, when there is no recording of conversation the question of producing of tape recorder before the Court dose not arises and even if it is not produced only on that ground it is not fatal to the prosecution case. All these above grounds the learned Special Public Prosecutor also made the submission that, even looking to the evidence of DW-1 examined by the defence it supports the case of the : 20 : prosecution that, regarding the allotment of the duty to the conductors. Hence she submitted that, perusing the entire material both oral and documentary placed before the trial Court, the learned trial court rightly appreciated and rightly comes to the conclusion in holding that prosecution has proved its case beyond all reasonable doubts against appellant/accused convicted for the said offences. Hence she made submission that, there is no merit in the appeal and same is to be dismissed.
14. I have perused the grounds urged in the memorandum of appeal, judgment and order of conviction passed by the trial Court, oral evidence of PW-1 to PW-8 and DW-1 and the documents Ex.P-1 to Ex.P-28, so also I have considered the oral submissions made by the learned counsels on both sides at the bar and the decisions relied upon by the learned counsel appearing for the appellant/accused which are referred above.
15. Coming to the demand and acceptance of the bribe amount is concerned, let me consider the materials : 21 : placed on record before the trial Court to ascertain whether the prosecution was able to establish the fact of demand and acceptance of bribe amount by the appellant/accused. It is the prosecution case as per the averment of the complaint that, complainant was serving as a conductor in the said Department and the accused person was the Superior Officer to the complainant and he was demanding Rs.200/- per month from the complainant for the purpose of assigning the duty and putting his signature on the way-bill, this is to handing over the cash collected by the conductors to the cashier. It is also the contention of the complainant that, if that money is not paid to the appellant/accused he was threatening that, he will not put his signature on the way-bills and he will not assigning the duty as desired by the conductors and he was threatening that, he will give trouble in this connection. I have perused the Ex.P-1/Complaint, there is mention that, the appellant/accused was demanding Rs.200/- per month from the complainant, so also it is mentioned that for two months the complainant not feeling : 22 : well, so he has not attended to his duty, thereafter he attended to his duty, at that time the accused demanded bribe amount of Rs.1,000/- for five months i.e., two months when the complainant was not attended the duty and the subsequent three months, bribe amount totally amounting to Rs.1,000/- and then he approached the Lokayukta Police.
16. I have also perused the oral evidence of PW-1 the complainant, in his oral evidence at page No.1 of the deposition, at paragraph No.2, he deposed that, every month the accused person used to collect Rs.200/- from the conductors for the purpose of assignment of the duty and putting the signature on the way-bills. It is also mentioned in the said paragraph that, if amount is not paid he was not putting the signature on the way-bills. PW-1 further deposed in the same paragraph, because of that reason the complainant was paying Rs.200/- per month as a bribe amount. It is also deposed by him, in case if he did not pay the bribe amount the accused was not signing on : 23 : the way-bill, so the complainant ought to have waited till evening. In the evidence, he has also deposed about his absence to duty from two months, thereafter he attending the duty and the accused person demanded total Rs.1,000/- for the five months period and then he approached the Lokayukta Police and lodged the complaint. The complainant/PW-1 also deposed that, when he had been to the Lokayukta Office he lodged the complaint as per Ex.P-1 and also produced the intended bribe amount of Rs.1,000/- i.e, 10 currency notes with denomination of Rs.100/- each, then the entrustment mahazar was conducted in the Lokayukta Office and the chemical re-action about the phenolphthalein powder in sodium carbonate solution was also explained to them. He also deposed that, he was instructed by the Lokayukta Inspector, himself and panch No.1/PW-4 together have to go to the office of the accused and complainant enquire about his work and then if the accused demanded the bribe amount he has to pay the amount smeared with the phenolphthalein powder, then he has to give the pre- : 24 : arranged signal of wiping his face with the hand kerchief. He has also deposed in his evidence that, accordingly on 17.05.2007 in the evening himself and PW-4 together went to office of the accused, but accused was not present in the office, they were told that, he will come accordingly they waited and at about 7.00 p.m., the accused came to his office, then the complainant and PW-4 went to the office of accused and accused was present, accused asked about the bribe amount and complainant has paid the bribe amount in the presence of PW-4 the shadow witness, then after coming out, he gave the pre-arranged signal, the Police Inspector, another panch-witness and the staff rushed to the office of the accused and caught hold his hands, hand wash was taken in the sodium carbonate solution prepared, it turns into the pink colour and then when the appellant/accused asked to produce the bribe amount, he took it out from the almirah and produced before the Lokayukta Police. In the cross-examination, when it was suggested to the complainant that, the accused has not at all demanded the bribe amount from : 25 : him and he is deposing falsely, the said suggestion was denied by the witness. When it was suggested that, the accused person was not at all assigning the duty and he was not the person putting signature on the way-bills of the conductors and the witness is deposing falsely, the said suggestion is also denied by the witness;PW-1. He has also deposed in his cross-examination that, he does not know that, on 05.05.2007 there was a farewell function for Sri.P.Y.Naik, Depot Manager on his transfer and when it was suggested to witness PW-1, in the said farewell function the accused person came there and pacified the quarrel which was going on in between the Naik and other staff and because the accused person pacified the quarrel, the PW-1 having a grudge against them for that reason giving false evidence against accused, said suggestion was also denied by the witness.
17. The prosecution also examined another witness PW-4-Shivarudrappa Girimallappa Kumbar, wherein he deposed that, he is working in the Irrigation Department : 26 : and on 17.05.2007 as per instructions of his higher Officer he reported before the Lokayukta Police at 3.30 p.m. The complainant and another pancha was also present there and he has deposed in his examination-in-chief that, the complainant lodged the complaint against the Traffic Controller alleging that, he has demanded Rs.1,000/- bribe amount from him. He further deposed that, complainant produced Rs.1,000/- before the Lokayukta Police, entrustment mahazar was conducted in his presence and then the amount of Rs.1,000/- smeared with phenolphthalein powder was given to the complainant with the instruction that, he has to go to the office of the accused enquire about the work and if the accused demanded the bribe amount then he has to pay the said amount to him. He also deposed that, he also accompanied with the PW-1/Complainant to the office of accused and when the appellant/accused saw them, he enquired with the complainant whether he has brought the amount, complainant said, he has brought the amount and gave the said amount to the accused person, he received it : 27 : from his right hand and counted the amount from both hands and then kept the amount in said almirah. In the cross-examination, he deposed that, on 17.05.2007 he came to know that, at 1.00 p.m. their office received the letter from the Lokayukta Police, when he went to the Lokayukta Office it was 3.30 p.m. and when he came to the office of the accused person it was 4.30 p.m. At 7.00 p.m accused alone came to his office, no other persons were with the accused person, when the accused entered into his office sit on his chair, there were no other persons. He denied the said suggestion that, accused has not at all demanded bribe amount from the complainant, nor received the said amount and he is deposing falsely, he denied the said suggestion. He has also denied the said suggestion that, as he is serving in the said office and in case if he does not depose in favour of the prosecution then enquiry will be initiated against him, and the Lokayukta Police also threatened him, therefore he is deposing falsely, the said suggestion is also denied by the witness.
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18. I have also perused the document Ex.P-7 entrustment mahazar, wherein also it is mentioned about the Lokayukta Police conducting the entrustment mahazar i.e., the complainant producing Rs.1,000/- then the Inspector got the said notes smeared with phenolphthalein powder and he also mentioned page No.2 of the said document that, Sri.A.N.Mulla, Traffic Inspector in order to allot the duty to the conductors and put his signature on the way-bills collecting Rs.200/- from each of the conductors. At page No.3 of the said document of Ex.P-7, it is mentioned that, the notes which were mentioned serial numbers 1 to 10 were given to the complainant and complainant after receiving the said amount kept the notes in his shirt-pocket. I have also perused the trap mahazar Ex.P-13, at page No.1 of the same, it is mentioned about the accused person demanding Rs.200/- per month from the conductors for assigning the duty and for putting his signature on the way-bills. On page No.2 of this Ex.P-13 in the second paragraph, it is mentioned that, : 29 : thereafterwords complainant went to the office of the accused and met him, panch No.1 was along with the complainant, complainant enquired about his work and at that time the accused person told the complainant that, he has to pay Rs.1,000/- as he has already told to him by way of bribe amount and asked the complainant whether brought that amount, then he told that, he has brought that amount and complainant gave the amount taking out from his shirt pocket to the accused, accused received it from his right hand, counted with both hands and then keep the same in the almirah after opening the almirah. In the entrustment mahazar, it is also mentioned that, the hand wash of the accused was taken in two separate bowls and the solution turned into the pink colour. It is on the basis of this material, the prosecution is contending that, it has proved this case regarding demand and acceptance of the bribe amount.
19. Regarding the allegation that, the accused person was demanding bribe amount of Rs.200/- from the : 30 : complainant, as well as other conductors is concerned admittedly, according to the prosecution they have not produced any documents to show that, this accused person was entrusted with the duty of the assignment of work to the conductors and putting his signature on the way bills of the conductors. In this connection the prosecution has examined one witness PW-8 Wasim Abudlkhadir Bargir who is the Depot Manager.
20. Looking to his evidence of PW-8, he deposed that the lokayukta police requested them to produce the way bills pertaining to the period from 15.5.2007 to 17.5.2007 and the letter under which such request was made is Ex.P.27. The witness further deposed that the way bills pertaining to the accused person for the said period were not available, but he has produced the Xerox copy of the accused person attending to his duty i.e., attendance register. The said document is as per Ex.P.28(a). In the examination-in-chief : 31 : itself he deposed in paragraph No.2 on page No.1 that, with regard to the distribution of work between the Traffic Inspector and Assistant Traffic Inspector, there are no orders in their depot. But the witness further deposed that they were attending the duty and performing their duty according to their convenience. The further deposition that, so far as the conductors and the drivers are concerned, who has to allot the duty to them from their transport corporation, there are no specific circulars issued in that regard. He also deposed that they made efforts to find out the way bills pertaining to the period of the year 2007 for the month of April and May, but they were not traced in their office. In the examination-in-chief he deposed that before he joined the said corporation, the Traffic Inspectors were attending to the drivers work allotment and Assistant Traffic Inspectors were attending to the assignment of the duty to the conductors. But he further deposed : 32 : that in this regard also there are no specific directions issued and they were attending to their convenience.
21. So looking to the evidence of the very prosecution witness PW.8, it is very clear that there are no documents produced by the prosecution to show that the present appellant was entrusted with the work of allotment of duties to the conductors and also signing the way bills of the conductors. Therefore the very first contention of the prosecution that the accused person was doing the work of allotment of duties to the conductors and he was putting the signatures on the way bill itself is not supported by any documentary evidence, except the oral evidence of the prosecution witness, more particularly the complainant PW.1. But regarding this contention even looking to the evidence of PW.1 also, there : 33 : are admissions during the course of his cross- examination.
22. Apart from that, on the side of the defence one witness is examined as DW.1 Shivanand Maruti Naganur. He is the Assistant Traffic Inspector from the 3 r d depot of Belagavi. In his examination-in-chief he deposed that T.Y.Naik entrusted him to attend to the assignment of duty to the conductors and to the accused, assignment of duty in respect of drivers. So this evidence in the examination-in-chief clearly goes to show that the accused person was having the duty to allotment of work to the drivers and not to the conductors. During the course of cross- examination by the prosecution, when it was specifically suggested, he is deposing falsely in order to help the accused person that accused was entrusted with the work of allotment of duty to the drivers and he was entrusted with the work of : 34 : allotment of duty to the conductors, but the said suggestion has been denied by the witness. Therefore denial of the said suggestion also affirms his evidence in the examination-in-chief that the accused person was entrusted with the work of allotment of duty to the drivers and not to the conductors.
23. The learned Special Public Prosecutor during the course of arguments referring to the evidence of PW.1 in the examination-in-chief tried to convince this Court that it has been wrongly mentioned, instead of mentioning that T.Y.Naik, when he entrusted the work to the accused, it was to assign duty to the conductors, but the said contention of the learned SPP cannot be accepted, because looking to the cross-examination again a suggestion was made in that regard which clarifies the point that the witness DW.1 is correctly deposing so far as allotment of duty to the : 35 : conductors as well as the drivers are concerned. Therefore the very basis for the prosecution case, the accused demanding bribe amount when he was entrusted with the work of allotment to the conductors and putting his signature on the way bills are concerned. So, so far as allotment of duty is concerned, we are having the deposition of DW.1 the Assistant Traffic Inspector, Belagavi 3 r d Depot.
24. Apart from that, is there any material produced by the prosecution at least to show that the accused was doing the work of putting his signature on the way bills are concerned at least. Even with regard to that also firstly the prosecution not placed any way bills during the course of the trial and even during the course of investigation no such effort was made by the Investigating Officer to collect such way bills at least to show one or two way bills that the : 36 : accused person used to sign on the said way bills. In this regard the evidence of Investigating Officer is most material. The Investigating Officer has been examined as PW.7, the Deputy Superintendent of police. On page No.6 of his deposition at para No.11 this PW.7 deposed in his evidence in the cross-examination by the defence that he made efforts to secure the documents, he did not made any attempt to secure any officials of KSRTC in order to get the documents. During his investigation it is revealed that complainant did not attend the duty on 16.5.2007 and 17.5.2007. But he did not obtain any supporting documents in this regard. He did not secure the way bills copies pertaining to the complainant signed by the accused. The next sentence is from him, he had no impediment for securing the muster roll pertaining to the complainant and his way bills. So this evidence of the Investigating Officer clearly goes to show, it is an admitted fact : 37 : as per his evidence that the original way bills or even the copies of the way bills were not secured by him. In the absence of such way bills it is difficult for this Court to accept the contention of the prosecution that the accused person was entrusted with the work of putting signatures on the way bills of conductors because it is specifically denied by the defence during the course of cross-examination of the prosecution witnesses. Therefore only on the basis of oral say of the prosecution witness, more particularly the complainant that the accused was entrusted with such duty, even putting signature on the way bills cannot be said to be established by the prosecution to the satisfaction of the Court.
25. Apart from that, the cross-examination of this PW.7 further goes to show that on 18.5.2007 he gave oral instructions to the depot manager in his office. He did not record the statement of any : 38 : of the officials of KSRTC regarding the working pattern of staff. The next deposition at para No.12 of his deposition is also relevant that on 18.5.2007 when he had been to KSRTC depot, he was there for one hour. He did not collect any documents pertaining to unauthorized absence of complainant from duty. And even the evidence of this PW.7 also goes to show he has not examined any of the conductors during the course of his investigation. When the very allegation in the complaint that accused was demanding Rs.200/- per month not only from the complainant but from each of the conductors who were about 150-200 in number and collecting bribe amount of Rs.200/- from each of them, the Investigating Officer ought to have enquired with some of the conductors;
even he has not done so, not recorded the statement of any one of such conductors, which is also fatal to the prosecution case in establishing the factum of demand of bribe amount of Rs.200/- : 39 : . Not only that, the complainant in his oral evidence deposed that he has also made oral complaint to the depot manager about the accused person demanding the bribe amount. He further deposed on page No.9 of his deposition that he has complained the illegal demand by the accused to the depot manager, he has orally complained, at that time along him with 3-4 persons were also present, one Badiger, C.N.Patil, Uppar and himself were present when the oral complaint was made; the depot manager has assured them that he will discuss the matter with the Traffic Inspector and then call a meeting. He did not enquire as to whether any such meeting or enquiry was done by the depot manager. So this also goes to show that the Investigating Officer has not at all recorded the statement of any one of such conductors, even from the persons who accompanied the complainant while orally complaining before the depot manager.
: 40 :
26. Apart from that the documents produced by the prosecution go to show the document Ex.P.27 is the letter addressed by M.N.Karibasavanagouda, Police Inspector, Karnataka Lokayukta Police Station, Belagavi. This document was addressed to the depot manager of the said KSRTC depot at Belagavi and this is dated 13.9.2011. Looking to the contents of this letter, at para No.2 it was requested that the way bills pertaining to the complainant Rajashekhar Hosakeri for the period from 15.5.2007 to 17.5.2007 the certified Xerox copies are to be provided immediately. The incident took place in the year 2007. This letter is after lapse of four years. This also speaks on the quality of the investigation done by the Lokayukta Police. In reply to this document Ex.P.27, there is a reply as per Ex.P.28, wherein the information was furnished that the complainant attended to duty on 15.5.2007, 16.5.2007 and 17.5.2007 and they : 41 : have provided the attendance register in that regard and it is also mentioned so far as the allotment of duty to the drivers and conductors, Sri A.N.Mulla, Traffic Inspector and S.M.Naganur, the Assistant Traffic Inspector were attending. Therefore even looking to the document Ex.P.28 the way bills were not at all secured. Therefore as I have already made the discussion above, the documentary evidence on the side of the prosecution is missing in this case and so far as the oral evidence is concerned, I have made my discussion with reference to the oral as well as the documentary evidence that it is not consistent with each other.
27. The evidence of PW.1, PW.7 the Investigating Officer and the contents of Ex.P.7 entrustment mahazar and Ex.P.13 trap mahazar, all they go to show that after entrustment mahazar was over, before proceeding to the spot : 42 : for conducting the trap mahazar, the Investigating Officer handed over a tape recorder to PW.1 complainant with a specific instructions to him, when he is going to the accused person, he has to record the conversation between himself and the accused. But looking to the oral evidence of PW.1 the complainant, in the examination-in-chief on page No.5 itself he deposed that he was provided with the tape recorder. But the conversation was not recorded in the said tape recorder. So as per the evidence of PW.1, conversation between himself and the accused person was not recorded. Looking to the evidence of PW.7, the Investigating Officer, he also deposed at page No.2 of the deposition in the examination-in-chief itself in para No.3, he has also handed over a small tape recorder to the complainant and instructed him to record the conversation between himself and the accused at the time of payment of the amount. He further deposed on page No.4 of his deposition, he : 43 : has asked the complainant to produce the small tape recorder given to him and accordingly he produced it. He switched on it, but the conversation was not recorded properly. So this evidence of PW.7 the Investigating Officer goes to show that there was a recording of conversation, but it was not properly recorded. Though it is the admitted case of the prosecution that PW.1 complainant produced the tape recorder before the Investigating Officer PW.7, even then it was not produced before the Court and it is the Investigating Officer who has taken a decision in that matter that it is not necessary to produce it before the Court. It is for the Court to examine whether there is a recording of the conversation or not. If there is a recording, whether it is properly recorded and whether it is clearly audible or not and the Investigating Officer himself cannot take a decision in the matter. He cannot regulate the proceedings by taking such decision.
: 44 :
28. Now, it is the contention of the defence during the course of argument, if the tape recorder is produced before the Court, the conversation said to have been recorded in the tape recorder, it was favourable to the accused person for his defence and that was the reason for the prosecution to withhold the tape recorder. Therefore as per the Police Inspector of Lokayukta, the tape recorder was given to the complainant with a specific instruction to use it to record the conversation between himself and the accused person, then the prosecution cannot withheld production of the tape recorder before the Court. Therefore adverse inference will have to be drawn as per Section 114(g) of the Indian Evidence Act to the effect that if it had been produced before the Court, the conversation would have gone against the prosecution case. Therefore the learned counsel for the defence is justified in making such submission. Therefore this aspect : 45 : also goes to show that there is no consistency in the case of the prosecution.
29. Now coming to the time factor, the complainant himself says that on 17.5.2007 also he was on duty; he attended his duty from morning 6.30 a.m. to 2.00 p.m. and when he went to Lokayukta office, it was 2.10 p.m. and thereafter he lodged the complaint. But looking to the evidence of the shadow witness PW.4, wherein he has stated in the first sentence in the cross- examination, on 17.5.2007 he came to know their office received letter from the Lokayukta Office at about 1.00 p.m. Looking to this, the evidence on oath by PW.4 goes to show that the intimation from the Lokayukta Office for adopting a pancha witness to the Lokayukta police was received at 1.00 p.m., whereas the complaint was lodged as per the evidence of PW.1 at 2.10 p.m. So even much earlier to registration of the complaint, the : 46 : intimation was sent to the office of PW.4 for adopting a pancha witness. Therefore in this regard it is the contention of the learned counsel for the appellant-accused, how the lokayukta police came to know that there is such case about which the complainant is going to file the complaint well in advance. Therefore he is justified in making submission that there is something fishy in the matter that even before lodging the complaint everything was prepared and kept ready well in advance. So in this connection it is his contention that when the Investigating Officer has admitted in his cross-examination, when PW.1 gave the oral complaint, firstly it was taken on a white paper, thereafter it was used for getting it typed in the computer. As per the contention of the learned counsel for the appellant, the white paper on which the complainant gave the complaint is also a relevant material which ought to have been produced by the prosecution before : 47 : the Court. In this connection he has also drawn attention of this Court regarding the relevancy of the said fact in view of the evidence of PW.4 that at one O'clock itself they received a letter from the Lokayukta office. Therefore there is a justification in the submission made by the learned counsel for the appellant-accused.
30. So far as the sanction is concerned, it was produced before the trial Court and PW.3 authority who issued the sanction order gave evidence on oath that he has received the request letter from the Lokayukta Police for issuing the sanction order. The said requisition was accompanied by the documents like complaint, entrustment mahazar, trap mahazar and the charge sheet material. He also deposed that he had gone through the entire material, applied his mind to the said material, then only he has issued the said sanction order. But the contention of the : 48 : learned counsel for the appellant herein referring to the Government notification Ex.P.16 that as on the date of issuance of the sanction order, PW.3 was not at all competent authority having the authority to issue the sanction order. I have referred to both the documents Ex.P.15 and P.16. But when this sanction order was tendered in evidence before the Special Court, during the course of the trial, it was got marked by the prosecution without there being any sort of objection raised by the defence while marking the said document.
31. Apart from that, referring to the provision of law, Section 19 clause (3) sub-clause
(b) of the Prevention of Corruption Act, 1988, reads as under:
"No Court shall stay the
proceedings under this Act on the
ground of any error, omission or
irregularity in the sanction granted by : 49 : the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice."
Therefore looking to this provision, the appellant herein is not able to make out a case because it is issued by such authority PW.3, in what way it prejudices the interest of the accused person, it is simply argued that the said person was not competent as on the date of issuing sanction order. But in view of the provision and since the document got marked without raising any such objection, I am of the opinion that the contention of the learned counsel in this regard cannot be accepted at all.
32. The defence offered his explanation immediately after the trap proceedings are over. It is produced as per Ex.P.12, wherein it is stated by the accused person that the complainant asked him to keep the amount with him and accordingly : 50 : he kept that thinking that it would be paid to him back on the next day. But immediately thereafter the Lokayukta Police came and they have apprehended him. There is no fault on his part in this regard, that is the explanation offered. But this contention is also not correct, because if the amount is given to the accused person for the purpose of keeping it, then in that case, the hand wash of the accused taken in sodium phenolphthalein solution would not have turned into pink colour. But only on the basis that the hand wash of the accused person turned into pink colour, unless the other ingredients regarding the demand and acceptance is satisfactorily established by the prosecution, that itself is not sufficient to arrive at the conclusion to base the conviction on the accused person.
33. Considering the prosecution material itself both the oral and documentary and in the : 51 : absence of production of any material to show that the present appellant was entrusted with the work of assigning duty to the conductors and putting signatures on the way bills, this Court cannot accept the prosecution story only on the basis of the evidence of PW.1 and PW.4 and looking to the cross-examination of these two witnesses so also the Investigating Officer, the defence was able to establish the preponderance of probability. Therefore the accused need not prove his defence beyond all reasonable doubt.
34. All these aspects of the matter which were discussed above, were not taken into consideration by the learned Sessions Judge and he has wrongly proceeded in the matter, wrongly convicted the accused person for the said offences. The judgment and order of conviction arrived at by the trial Court is not in accordance with the materials placed on record. Hence the : 52 : appellant-accused has made out a case.
Accordingly the appeal is allowed.
35. The judgment and order of conviction dated 21.12.2011 passed by the IV Addl. District and Sessions Judge and Special Judge (PCA), Belagavi, in Spl.C.C.No.37/2008 is hereby set aside. The appellant-accused is acquitted of all the charges leveled against him.
36. The bail bonds executed by the appellant- accused stands cancelled. If any fine amount is deposited, the same shall be refunded to the appellant-accused.
Sd/-
JUDGE CKK/Mrk/-