Karnataka High Court
Kanthamma vs The State By Police Inspector on 10 November, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.1142 OF 2013
BETWEEN:
KANTHAMMA
W/O LATE S.R.HARISH,
AGED ABOUT 42 YEARS,
FIRST DIVISION ASSISTANT,
OFFICE OF DEPUTY COMMISSIONER,
CHITRADURGA - 577 501.
... APPELLANT
(BY SRI. RAVI B. NAIK, SENIOR ADVOCATE FOR
SMT. VIJETHA R. NAIK, ADVOCATE)
AND:
THE STATE BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA POLICE STATION,
CHITRADURGA - 577 501.
... RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPECIAL COUNSEL)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF
CONVICTION DATED 29.11.2013 PASSED BY THE PRL.DIST.,
AND S.J., AT CHITRADURGA IN SPL.C(P.C.A.)NO.3/2008
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHALBE UNDER SECTION 7 AND SECTION 13(1)(d) READ
WITH SECTION 13(2) OF P.C.ACT,1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.9.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the appellant/accused under Section 374 (2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the Principal District and Sessions Judge, Chitradurga (hereinafter referred to as 'Trial Court') in Special Case (P.C.A) No.3/2008 dated 29.11.2013 for having convicted and sentenced to undergo imprisonment for a period of three years and pay fine of Rs.20,000/- for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") and three years with fine of Rs.20000/- for the offence punishable under Sections 13 (1)(d) read with 13(2) of PC Act.
2. Heard the arguments of learned counsel as well as learned senior counsel for the appellant and learned special counsel for the Lokayuktha. 3
3. The fact of the case of the prosecution is that, one Mallachar son of Chandrachar of Kunikere village, Hiriyuru taluk, filed complaint before the Lokayuktha police, alleging that he has filed an appeal with Inam Abolition Act, which was pending before the Deputy Commissioner, Chitradurga. The Deputy Commissioner heard the arguments, reserved the appeal for orders to be pronounced on 23.04.2008. However, there was no order pronounced on that day. The complainant went to the office of Deputy Commissioner and enquired with the accused, asking for who was the case-worker, for not pronouncing the order. At that time, the accused said to have asked the complainant to meet her in her house. Accordingly, the complainant went to her house at Jogimatti road, Chitradurga and enquired her about his matter, for that, the accused demanded the complainant should pay Rs.50,000/- to her for placing 4 the file before the Deputy Commissioner. However, when the complainant expressed his inability to pay the said amount, the accused while bargaining, agreed for an amount of Rs.40,000/-, otherwise she has stated, that the opponent party is ready to pay the said amount. After the discussion, on 07.05.2008, the complainant went to the house of the accused and requested to reduce the amount, but accused did not agree and asked him to meet her after 3 to 4 days. On Monday evening, as the complainant was not willing to pay the bribe, he filed complaint to the Lokayuktha police on 12.5.2008. Then, the police registered the FIR and set up the trap. Accordingly, on the same day evening, a trap was held, the accused was caught red-handed while accepting money and recovered the same from her brother Annappa. Subsequently, a charge sheet came to be filed. The said Annappa was discharged by the court on 5 29.09.2011. Hence, the appellant appeared before the court for facing the trial. When charges were framed, she has denied the same. Hence, prosecution called upon to adduce the evidence. Accordingly, 7 witnesses were examined on behalf of the prosecution and 33 documents were marked and 15 material objects also were marked. During the cross examination, Exs.D1 to D5 were marked and 15 Material Objects were marked. After closing the evidence, the statement under Section 313 Cr.P.C. was recorded. The case of the accused was one of the total denial and she has filed written submissions. Later, the application was filed under Section 310 of Cr.P.C. for conducting spot inspection of the place of trap. Accordingly, the trial judge went to the spot and made the inspection. Subsequently, a sketch was also prepared. After hearing the arguments, the Trial Court found the accused guilty and convicted and 6 sentenced to undergo imprisonment, as stated above. Being aggrieved with the conviction and the sentence, the appellant accused is before this court.
4. Learned Senior counsel for the appellant has strenuously contended, the judgment of the Trial Court convicting the appellant, is not correct. There is no material placed on record to prove demand and acceptance. Absolutely, there is no connecting materials to prove the guilt of the accused. The demand and acceptance by the accused was not corroborated, since P.W.2 did not see the making of the payment by the complainant, she had stayed outside the house and she was partly treated as hostile. The panch witness to the trap and demo panchanama also were not examined. As per the sketch prepared, the shadow witness could not see the place of incident and she could not hear the conversation. The original CD placed before the court 7 for identifying the voice, but none of the witnesses identified the voice of the accused. He further contended, the money was handed over to Annappa, but his hand had not turned into pink, though his pocket had turned into pink colour. The accused not accepted the tainted money, these aspects were not properly appreciated by the Trial Court. Further contended as per evidence of P.W.4, the sanction order was not prepared by him. A draft was prepared and he has dictated only operative portion, he has not applied his mind. The sanction is not in accordance with law. Hence, prayed for allowing the appeal.
5. Per contra, learned special counsel has supported the judgment of the Trial Court and contended that the Ex.P3 is transcription of the audio record, which clearly mentions the demand made by the accused and received the tainted money. The conversation clearly reveals, she has asked the 8 brother to receive the money. Accordingly, the amount has been paid to the accused brother Annappa. Therefore, when the shadow witness and the complainant were all supported the prosecution case, questioning or disbelieving evidences does not arises. As regards to the sanction, he has contended the sanction order was passed by application of mind. Looking to the documents there are 3 stages mentioned that is preamble, reasons, and conclusion and it was found to be satisfactory and convincing order. Therefore, it is contended until and unless there is a failure of justice, sanction cannot be challenged in the appeal. As per section 19(3) of the PC Act, there is a bar for considering the sanction in the appellate stage, hence prayed for dismissing the appeal.
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6. Learned special counsel also contended the shadow witness was not able to see and hear the conversation. Therefore, the District Judge himself visited the spot and asked to prepared the sketch and finally passed the judgment. There was demand made by the accused, the voice recorder was sent to the FSL, but it was not relied by the Trial Court. The Ex.P7 is the transcription of the conversation which clearly reveals, the demand was made by the accused. The demand and acceptance has been proved by the prosecution. The acceptance of the amount was not in dispute, where the accused given explanation. He further contended, the file pertaining to the complainant was in the almirah of the accused, which reveals, the work was with her and she had to place the file before the Deputy Commissioner for passing the order. But she has demanded bribe for placing the file. Accordingly, she has received the amount 10 and she was trapped. Hence, prayed for dismissing the appeal.
7. Having heard the arguments, perused the records, the point that arises for my consideration are,
1. Whether the prosecution proves beyond reasonable doubt that the appellant being official of the Deputy Commissioner demanded bribe and accepted Rs.40,000/-
from the complainant for placing the file before the Deputy Commissioner for orders and she was trapped. Thereby, she has committed offence under Sections 7, 13(1)(d) read with 13(2) of the PC Act?
2. Whether judgment of conviction and sentence passed by the Trial Court calls for interference?
8. Before going to the appreciation of the evidences, it is worth to mention the evidence adduced by the prosecution before the Trial Court.
9. The PW.1/C. Mallachar, who is also complainant before the police has deposed, there 11 were two Inam Lands for the Hanumantha temple at Koonikere. The possession and cultivation of the land was with his family since long and he has filed application before Tahsildar for seeking Saguvali right to the Tahsildar by his father. The Tahsildar had referred the matter to the Land Tribunal, where the Land Tribunal refused to allow his application. Therefore, his father filed writ petition before the High Court and got direction to the Deputy Commissioner to consider his application. Accordingly, they have filed application No.1/2003-04. He himself used to attend the hearing before the Deputy Commissioner. After hearing the argument, the Deputy Commissioner reserved the matter for orders on 23.4.2008, but on the said day, no order has been passed. Hence he has approached the accused and she has informed that they shall intimate the hearing after 4 to 5 days. He has waited, but no such notice was issued. Hence 12 he went to the Deputy Commissioners office. The accused was not present, on enquiry he came to know the accused went to Taluk Office, but the complainant waited and met the accused. At that time, he found the respondent in his case was with the accused and there were discussions. Subsequently, at 3 p.m., he met the accused and enquired about the non-receipt of the notice, then she has informed she required to talk to him, therefore, asked him to come to the home. Then he went to the house of the accused, when the accused asked him to pay Rs.50,000/- for passing the order. Then he came back from the accused and once again he has discussed with his brother and was unable to pay so much amount. Hence, on 05.05.2008, he has approached Lokayuktha police and informed. The Lokayuktha police given a small tape recorded with cassette and asked him to meet the accused and to record the conversation 13 between him and the accused. Accordingly, on 07.05.2008, he met the accused in the house and when he approached the accused, she has told that she has demanded Rs.50,000/- and asked him "why you came there". Then he has expressed inability to pay Rs.50,000/-, for that the accused asked to pay atleast Rs.40,000/-. She and also told that she was not available on 9th, 10th, 11th and 15th of May 2008. Later she asked him to come on 12.5.2008 and pay money in the evening. Then he went and produced the tape recorded to the police. After hearing the conversation and after confirmation, the police received the complaint and he has identified the complaint as per Ex.P1. The police also prepared the FIR as per Ex.P2. Then he has produced Rs.40,000/-. The police secured on one Channabasava, from Commercial Tax Offices and one Shobharani, a physical instructor of the college. They prepared the 14 demo panchanama and informed the hand wash, which turned into pink after touching the money by the accused. They also taken photographs and identified the Ex.P4 which is a demo panchanama. He further deposes after giving instructions, the police officer instructed the Shobharani to be shadow witness to observe the conversation between him and the accused and asked the complainant to give signal after making the payment. Accordingly, on 12.05.2008 by 07.20 p.m., all of them went to near the accused house. The complainant himself, PW.1 and PW.2 went to the house of the accused and he has stated, PW.2 Shobha Rani, stood outside the room next to the window and he alone went inside the room. The accused was sitting on the diwan cot and the complainant has informed the amount brought by him and the accused told to give it. The complainant requested her to give Rs.5,000/- back. For that, the 15 accused did not agree and she felt some powder on the finger. Then questioned, what is happening, then she has called her brother Annappa and asked him to take the money. Later, Annappa took the money and when he was counting the money, the complainant trying to telephone to the police, when the accused was trying to snatch the phone. Annappa took the money and went outside the house, by at that time, the police came inside the house along with Annappa and PW.2/ Shobharani. Then the police enquired about the money. The said Annappa told the money was in his pocket, then police seized the same under the panchanama. The complainant/PW.1 has identified the money which was given by him to the accused. The said amount was identified as M.O.1. The police prepared the sodium carbonate solution. The accused hands were washed and it turned into pink. The police also washed the hands of the brother 16 of accused and also pant pockets of the accused No.2 which turned into pink. The right side hand of the accused turned into pink, but left side hand did not turn into pink. The amount was seized by the police, they prepared the panchanama. The police also verified the conversation from the tape recorder. The cassette was marked as M.O.4. The complainant also identified the voice of the accused in the cassette. The transcription of the conversation has been marked Ex.P3. The witnesses also identified the entire voice in the cassette as per Ex.P7 and identifies signature.
10. PW.2/Shobharani who is the shadow witness, has deposed that on 12.05.2008. The Lokayuktha police called her to the police station and informed her about the demand made by the accused for bribe and the complaint filed by the complainant, prepared the demo panchanama. Also deposed in the evening that she has accompanied the police team. 17 The complainant went inside the house, she stayed outside the room near the window. She also said to have stated that inside the house, a lady and the complainant and a person were present. She has heard some noise of quarrel and a person came outside. She has called the police, then they took the said person, went inside the house and she came to know that the said person was the brother of the accused. The police seized Rs.40,000/- from the pant pocket of Annappa and the hands of the accused also was washed, which turned into pink. The pant pocket wash of the Annappa turned into pink and the same was identified as MO.2. The accused has given explanation as per Exs.P9 and 10. The Police prepared the panchanama, till late night i.e., 1.30 a.m., and she has identified the panchanama as per Ex.P5.
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11. She further deposes on 13.5.2008 at 2.30 p.m., the police took her to the Deputy Commissioner's Office. The accused took them near her table and she has handed over a file belonging to the complainant. The same was seized and she has identified at Ex.P6 as the said file was belonging to the complainant. The police prepared the panchanama as per Ex.P5. Then, a PWD engineer was called for preparing the sketch. She also deposed on 12.05.2008, the police prepared Ex.P3, the transcription of the conversation . She has further stated, she was unable to see and hear the conversation held between the accused and complainant, as she stood outside. This witness partly turned hostile regarding hearing the conversation held between complainant and accused at the time of trap. 19
12. PW.3/R.P. Purushothama Reddy, a Junior Engineer working at PWD has deposed on 15.5.2008, the police requested to prepare the sketch of the house of the accused and he has prepared sketch as instructed by the police on 13.6.2008 and identified the sketch as Ex.P13.
13. PW.4/Amlan Adithya Biswas, Deputy Commissioner has deposed, when he was Deputy Commissioner of Chitradurga, the accused was working as FDA. All the files were in the custody of the accused and she used to send the files to him and he came to know about the bribe demanded by the accused. On 3.11.2008, the ADGP Lokayuktha sent a letter along with FIR complaint, panchanama and other documents for granting sanction and he has verified the same and found there is a prima facie case against the accused. Accordingly, he has granted sanction and he has identified sanction as per 20 Ex.P14. The evidence of this witness was seriously disputed by the counsel for the accused, during the cross examination.
14. PW.5/M.P. Maruthi, has deposed when he was working in Deputy Commissioner's office as Assistant Gazetted Officer, at that time, the accused was FDA in the said office. On 13.5.2008, the Lokayuktha police requested to produce the files pertained to the appellant and he has handed over the file to the police as per Ex.P6. The police prepared the panchanama as per Ex.P11. He further deposes, the police played the tape recorder and identified female voice belonging to the accused.
15. PW.6/S.Kumarappa was inspector of Lokayuktha, he has deposed that on 12.5.2008 the PW.1 came to the office and filed a complaint as per Ex.P1. On the basis of the complaint, he has 21 registered FIR as per Ex.P2, then he secured the panchas. Introduced the panchas to the complainant and informed about the bribe amount demanded by the accused. The complainant handed over Rs.40,000/- to the police, a demo panchanama was prepared as per Ex.P3. The conversation also was recorded in the panchanama. The PW.2 noted down the currency note numbers as per Ex.P8. The phenolphthalein powder has been smeared on the currency notes and demo was shown to the witnesses. He also identified the cassette produce by the complainant, while lodging the complaint as per MO.3. He also took the photographs as per Exs.P.16 to P.24. He prepared the panchanama as per Ex.P.4. Then at 7.20 p.m., they went near the house of the accused . PW.1 and PW.2 went to handover the cash to the accused . After sometime, a person came out, then they took that person inside the house, where a 22 woman and male person were present. On enquiry, with complainant, he has informed the demand was made by the accused for payment of Rs.40,000/- to the accused. Then he also informed the amount was given to the Annappa by the accused, which was seized from his pocket. Later, a panchanama was prepared, the hands of the accused and brother of the accused were washed with sodium carbonate, which turned into pink colour. The accused and her brother given the explanation as per Exs.P.9 and P.,10 then he has prepared panchanama. He also heard the conversation between the accused and the complainant and transcripts into writing and identified at as Ex.P.7. He also taken photographs as per Ex.P.26 to P.29. He has prepared detailed panchanama as per Ex.P.5. Then, he has arrested the accused and produced her before the court. 23
16. He further deposes that on 13.05.2008, he requested the Deputy Commissioner to handover the file belonging to the complainant and the service details of the accused as per Exs.P.30 and P.31. One Maruthi has shown the seat of the accused and there was Almirah and he got the file of the complainant, as per Ex.P6. He prepared the panchanama as per Ex.P.11 and he recorded the statement of the witnesses. On 15.05.2008, he wrote letter to PWD for preparing the sketch and letter to the Electricity Board regarding supply of the electricity. On 07.06.2008, he has sent the seized articles to the FSL and shown the spot to the PWD Engineer. He also received the certificate from the electricity department regarding supply of the electricity on the day of the incident. He has also repaid Rs.40,000/- to the complainant by way of cheque and on 04.09.2008 he has handed over the investigation to another officer due to his transfer. 24
17. PW.7/M.N. Rudrappa, another inspector has deposed that he took up the further investigation of this case, received the FSL report as per Ex.P15. He has verified Ex.P13, spot sketch and recorded the statement of the witnesses and after completing the investigation, requested for sanction of the prosecution. Accordingly, on 05.12.2008, he received the sanction order as per Ex.P.14, then he has filed the charge sheet.
18. Learned senior counsel for the appellant relied upon the various judgment of the Hon'ble Supreme Court and contended that when the demand is not proved, even mere acceptance of tainted money, the accused cannot be convicted. He further contended that the evidence of PW.1 is not trustworthy and PW.2 has not at all accompanied the complainant/PW.1 for proving the demand and 25 acceptance. Even the money was recovered from the accused. Therefore without demand and acceptance the accused cannot be convicted.
19. In support of his contention the learned senior counsel relied upon the judgment of Hon'ble Supreme Court reported in 2011 (6) SCC 450 in case of State of Kerala Vs CP Rao at para 10, the Hon'ble Supreme Court by referring the judgment of [1] CM Girish Babu Vs CBI, Cochin, High Court of Kerala reported in 2009(3) SCC 779 and [2] Suraj Mal Vs Sate (Delhi-Administration) reported in 1979 (4) SCC 725, wherein the apex court has held that "mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused, when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused". In another judgment reported in 26 G.V.Nanjundiah Vs State (Delhi Administration) [1987 (Supp) SCC 266] also taken similar view. The demand is required to be proved by adducing clinching evidence. Another judgment in 2018, SCC ONLINE SC 1841 Dashrath Singh Chauhan Vs CBI, wherein it is stated that "there is no evidence to prove that the appellant has directly accepted the money from the complainant. Since the plea of conspiracy against the appellant and Rajinder Kumar failed, it cannot be held that money (Rs.4000) was recovered from the possession of Rajendra Kumar was as a fact, the bribe money meant for the appellant for holding guilty for the offence punishable under Sections 7, 13(2) read with 13 1(d) of PC Act". The same view was taken in the case of State of Punjab Vs Madan Mohanlal Verma reported in 2013 (14) SCC 153 and various other cases relied by the learned counsel, wherein the Hon'ble Supreme Court 27 has held, "the demand and acceptance are sine-qua- non for constituting the offence under the PC Act. Mere recovery of tainted money is not sufficient and also held the corroboration of the independent witness is necessary for conviction". Learned counsel for the appellant has also relied upon the latest judgment of Hon'ble Supreme Court passed in Crl.A.No.1592/2022 in case of Soundarajan Vs State rep. by the Inspector of Police Vigilance Anticorruption, wherein the Apex Court has held that the demand and acceptance is required to be proved and there shall not be a simple demand for money, but it has to be a demand for gratification, then only the presumption under Section 20 of PC Act, can be invoked.
20. On the other hand, the learned counsel for the respondent has contended the demand was proved by the prosecution, when the complainant 28 approached the accused, where she has demanded Rs.50,000/- and later she was ready to accept for the amount of Rs.40,000/- and the demand conversation was recorded in a tape recorder and it was produced before the police. Thereafter, the FIR was registered and at the time of trap, once again the complainant took the tape recorder, there was conversation held between the accused and complainant and it was transcribed as per Ex.P.3.and Ex.P.7, which clearly corroborates with evidence of PW.1. Though PW.2 went near the house, but she stood outside the room near the window, she could not see and hear the conversation. But she has stated, there was a quarrel between the two persons and tainted money was recovered from the brother of the accused. The acceptance of money has been admitted by the accused persons under Exs.P.9 and P.10. by explanation and stating that the complainant has 29 given the money and inspite of accused refusing the said money, the complainant has forcefully given the bundle of money. Later, when the brother of the accused came, the amount was forcefully inserted in the pocket of the brother of the accused. Both of them admitted the receipt of the money and the same was proven through their hands. Thereby the demand and acceptance was proved through conversation which was recorded at Ex.P.7. Therefore, he has contended, the prosecution proves the case of demand and acceptance.
21. Learned counsel for respondent also relied upon various judgment of Hon'ble Supreme Court especially Vinod Kumar Vs State of Punjab (2015) SCC 220 / AIR 2015 SC 1206 and in recent judgment P.Sarangapani (dead) through LR Paka Saroja Vs State of Andhra Pradesh passed in Crl.A.No.2173/2011. Also relying upon the 30 judgment of Hon'ble Supreme Court in the Neeraj Dutta Vs State (Government of NCT Delhi) (2023) 4 SCC 731, the Hon'ble Supreme Court has held in the at para 88.6 (f) as below, "In the event the complainant turns hostile or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can gain let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence the trial does not abate nor does it reveals in an order of acquittal of accused/ servant".
22. Hon'ble Supreme Court has categorically held even the demand and acceptance proves demand of illegal gratification, can be proved by circumstantial evidence. By keeping the principle laid down by Hon'ble Supreme Court in above said cases by coming to the evidence of prosecution witnesses, wherein the 31 PW.1 has stated that an appeal was pending before Deputy Commissioner for orders to be passed on 23.4.2008, but no order was passed. The appellant being case worker-FDA, on enquiry, she told the complainant to come and meet her in the home. Later, when he met her, she has demanded Rs.50,000/- and later she was ready to accept Rs40,000/-. The complainant approached the police, at that time, the police officer gave a cassette tape recorder for recording the conversation. Accordingly, the tape recorder was take by the complainant, had conversation with the accused, where she has demanded Rs.40,000/-. On production of the cassette, the Investigating Officer registered the FIR. The recording of the conversation by the complainant in a cassette and later it was produced before the Investigating Officer after registering the FIR. The cassette was given back to the complainant, that 32 cassette was only for the purpose of confirming the demand made by the accused towards the bribe for execution of the work and placing the file before the Deputy Commissioner for passing the orders. Subsequently, after registering the FIR, Investigating Officer called PW.2 and another witness, introduced to the complainant and also mentioned the procedure for the trap, in front of the PW.2. Once again the Investigating Officer and complainant informed about the bribe amount demanded by the accused. During the trap, once again a cassette record was given to the complainant and instructed PW.2 to accompany the PW.1 as shadow witness. Accordingly, at 7 p.m., the police official stayed outside and the PW.1 and PW.2 went inside the house of the accused at 7.20 p.m. However, the PW.2 stayed outside the room, near a window. The PW.1 alone went inside and there were conversation between them. Ultimately, the 33 amount was given to the accused, she has counted the money and she found some powder and questioned the complainant, what is wrong with him? Later, she has suspected the complainant and immediately she called her brother and handed over the cash to him. The Annappa, brother of the accused received the money and kept it in his pocket and when he wanted to go out, the police held him and brought inside the house and seized the cash of Rs.40,000/-, prior to that, his hands were washed. Of course, right had turned into pink and left hand did not turn to pink, which suggests the acceptance of money by Annappa, who is the brother of the accused. Likewise, both hands of the accused were hand washed through sodium carbonate solution, both hands turned into pink which clearly proves the acceptance of money by the accused and handed over to the brother which was seized by the police at the 34 same time, in the house of the accused. Of course, they have stated in Ex.P.9 and P.10 through explanation that the cash was forcefully given, demand thereby the acceptance was proved by the prosecution. It was not seriously disputed by the accused and they have contended, it was forcefully given. However, as regards to the demand by the accused, it is proved by way of cassette produced by the complainant, which was basis for registering the FIR. Subsequently, at the time of trap, there was conversation between them. The cassette was played and it was transcribed and reduced into writing. The Ex.P.7 is the transcription prepared by the Investigating Officer on the very same day, at the time of trap. It was played in the presence of PW.1/complainant, PW2 and another panch witness, by the Investigating Officer, where it was mentioned, wherein it was revealed that complainant requested 35 her to complete the work, for that she was telling the complainant "give it" (vÀjæ). Again the conversation goes, he handed over the money and informs to count it, then, she found some powder in the hand and questioned him, for that, he has stated that the amount brought from State Bank directly and asked to count it. He also requested the accused to reduce Rs.5,000/-, for that, she has replied, she will not reduce as it is already discussed with him. Subsequently, the complainant trying to take the phone, she snatched the phone and asked her brother to come and ask her brother to snatch the phone, then, there was a tussle between both accused and the complainant. The complainant told her that don't suspect him and he brought the money from bank. Then the complainant told her to give back the money, if she has no faith. Subsequently, the complainant also gave back the money, for that, the 36 accused replied that she has received the said money for doing work and not for returning back. At one stage, the accused instructed the complainant to ask to sit him when he is trying to telephone, she has instructed her brother not to allow the complainant to speak in phone and also by naming the complainant she has told that her uncle is in Lokayukta and she knows very well and don't under estimate her. These conversations clearly goes to reveal that the accused demanded the bribe and accepted the same.
23. In the cross examination of PW.1, nothing has been elicited to disbelieve the evidence of the PW.1 as regards to the conversation held at the time of accepting the tainted cash by the accused from the complainant.
24. Though PW.2 turned hostile in respect of the payment made by the complainant to the accused 37 in the house as she was stayed outside the room, she was not able to hear the conversation and saw handing over the money, but the evidence of PW.1 and Ex.P.7 transcription of the audio cassette which clearly reveals the accused demanded the money and accepted the same. As held by the Hon'ble Supreme Court in the case of Neeraj Dutta stated supra, where the demand can be proved by way of circumstantial evidence. Here in this case, the evidence of PW.1 and evidences of PW.2 and PW.6 were clearly reveals the tainted amount recovered from the accused for Rs.40,000/-. The conversation as well as the complaint clearly reveals that there was demand by the accused for placing the file before the Deputy Commissioner. The accused also given explanation-Exs.P9 and P10 for receiving the money by force. Subsequently, the file has been seized from the almirah of the accused on the very next day which 38 was seen from the evidence of the PW.3 who has handed over the file to the police from the almirah of the accused which was seized under the panchanama.
25. There is some discrepancy in respect of accepting the money from the brother of the accused- Annappa as the complainant has stated that Annappa counted the money and kept it in his pant pocket, but only the right hand wash has been turned into pink but the left hand wash was not turned into pink. On the other hand, both the hands of the accused turned into pink which clearly suggests the acceptance of the money by the accused. The evidence of PW.1 and recovery made by the police in the presence of PWs.1 and 2, the panchanama-Ex.P.4 were all clearly corroborates with each other. Exs.P.9 and P.10 explanation of the accused reveals that they received the money. Of course, they say it was forcible, but the contention of the accused cannot be acceptable as the 39 accused counted the money in his both hands and thereafter, given to her brother. He received and kept it in his pocket. The pant pocket of her brother was also washed and it was turned into pink. Therefore, merely PW.2 not seen the actual making payment by the complainant, but it was received by the accused and her brother. Therefore, in view of the judgment of the Hon'ble Supreme Court in Neeraj Dutta's case, the prosecution is successful in proving the demand made by accused by marking Ex.P.7 which is transcription of the audio clippings, evidence of PW.1, Ex.P.1 and Ex.P.4. Hence, the arguments of counsel for the accused cannot be accepted.
26. The another contention raised by the learned counsel for the accused is that the sanction is not in accordance with law and there is no application of mind. On perusal of the evidence of PW.4-the 40 Deputy Commissioner who is the sanctioning Authority has deposed that he has verified the FIR, panchanama, copy of the complaint, FSL report, Statement of witnesses sent by the ADGP, Lokayuktha on 03.11.2008 and he found prima facie material to accord sanction against the accused and accordingly, he has issued the sanction order as per Ex.P.14 and in the cross examination, it was trying to show the order was prepared by the office and he has only passed the operative portion of the order. But he has stated that he has followed the format of passing the order and accordingly, the order was prepared and he has dictated and issued the sanction as per Ex.P.14. On perusal of the Ex.P.14-sanction order, it contains the preamble, reasoning and conclusion by passing operative portion of the order, therefore, I do not find any error in passing such order and the order clearly 41 reveals that there is application of mind by PW.4 while according sanction.
27. On considering the evidence of PWs.1, 2 to 7, which corroborates with the documents and material objects, the prosecution was successful in proving the fact, the accused demanded the bribe of Rs.40,000/- and accepted from PW.1 beyond reasonable doubt for having committed the offences.
28. The Trial Court by considering the evidence on record, even the trial judge visited the spot by taking risk of inspecting the place of occurrence by allowing the application under Section 310 of Cr.P.C. and thereafter recorded the findings holding guilty. Hence, I do not find any error or illegality or perverse finding by the Trial Court in convicting the appellant for the above said offence and the judgment and order of sentence does not call for any interference. 42 The accused-appellant found guilty for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. In view of the above findings, the appeal filed by the appellant is devoid of merits and liable to be dismissed.
Accordingly, the appeal is dismissed. Send the copy of the judgment and records to the Trial Court.
Sd/-
JUDGE AKV/GBB