Karnataka High Court
Nagabhushanaradhya vs State By Lokayuktha Police on 16 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.144/2011
BETWEEN:
NAGABHUSHANARADHYA
WORKING AS SURVEY SUPERVISOR,
LAND SURVEY DEPARTMENT,
TAHSILDAR'S OFFICE,
CHAMARAJANAGAR.
R/AT NO.891, 27TH CROSS,
4TH MAIN, VIDYARANYAPURAM,
MYSURU-560 004.
NOW TEMPORARILY
COME DOWN TO BENGALURU. ... APPELLANT
(BY SRI. P.N. HEGDE, ADVOCATE)
AND:
STATE BY LOKAYUKTHA POLICE
REPRESENTED BY STANDING COUNSEL
AND SPECIAL PUBLIC PROSECUTOR
FOR KLA CASES IN
THE HONBLE HIGH COURT OF KARNATAKA
BENGALURU. ... RESPONDENT
(BY SRI. B.S. PRASAD, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRYAING THIS COURT TO SET ASIDE THE ORDER
DATED 30.12.2010/ 31.1.2011 PASSED BY THE DISTRICT AND
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SESSIONS JUDGE, CHAMARAJANAGAR IN SPL.C.NO.3/2007 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 OF PREVENTION OF
CORRUPTION ACT AND ALSO FOR THE OFFENCE UNDER
SECTION 13(1)(d) PUNISHABLE UNDER SECTION 13(2) OF
PREVENTIN OF CORRUPTION ACT AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of conviction and order of sentence passed in Spl.C.No.3/2007 dated 30.12.2010 on the file of District and Sessions Judge at Chamarajnagar.
2. Heard the learned counsel appearing for the appellant and learned Special Public Prosecutor for the respondent-Lokayuktha.
3. The factual matrix of the case is that the accused being the public servant demanded and accepted the illegal gratification of Rs.200/- from P.W.1 on 13.01.2006 for issuing survey sketch of the land bearing Sy.No.45/01 of Galipura and committed criminal misconduct and thereby committed the offence punishable under Sections 7 and 13(1)(d) read with 3 Section 13(2) of the Prevention of Corruption Act (for short 'the P.C. Act'). The demand and acceptance is made out against the accused. Based on the complaint of P.W.1, entrustment mahazar was conducted and thereafter, trap was also held. The bait money was seized at the instance of the accused and thereafter, further investigation was conducted and charge sheet has been filed. The accused was secured before the Trial Court whereas he did not plead guilty and claimed trial.
4. The prosecution in order to prove its case, examined four witnesses as P.Ws.1 to 4 and got marked documents Exs.P1 to P16 and so also M.O.1 to M.O.9. The accused did not choose to lead any evidence. The Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. The Trial Court, after considering both oral and documentary evidence, convicted the accused for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act and sentenced him to undergo imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one week for the offence punishable under Sections 7 and 13(1)(d) of the P.C. Act.
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5. The accused being aggrieved by the judgment of conviction and order of sentence, filed the present appeal. In the appeal, it is mainly contended that the judgment of the Trial Court is manifestly perverse, untenable and totally incorrect. At the very inception stage itself, the Trial Court has committed an error in not framing any point for consideration with regard to validity of sanction order, which shows the non-application of mind by the learned Trial Judge in appreciating the evidence on record. Hence, without proving the sanction order for prosecution of the accused, the entire judgment is illegal and untenable. Mere marking of sanction order that too by P.W.4, who is the CPC of Lokayuktha Office and a member of trap team only identified the sanction order as Ex.P6 and he is neither the author of the same nor the competent person to depose before the Court on the said document. It is also contended that P.W.2- complainant, in his evidence, categorically says that he never lodged a complaint, but the same was written in the Lokayuktha Office without his instructions. Though he admits the signature on Ex.P5, it is his clear evidence that he has not given any instructions. When such being the case and the complainant was 5 treated hostile, nothing is elicited with regard to the demand and acceptance. The Trial Court has only considered the evidence of P.W.3, who is the shadow witness and also the evidence of P.Ws.1 and 4 and erroneously came to the conclusion that the prosecution proved the case on the ground that P.W.3 is an independent witness. The Investigating Officer, who conducted the investigation, is no more and hence, P.W.4 was examined. The evidence of P.Ws.1 to 4 has not been properly appreciated by the Trial Court and admissions elicited from the mouth of witnesses have not been discussed by the Trial Court in right perspective and thus, committed an error.
6. Learned counsel appearing for the appellant in his arguments vehemently contend that the complainant, who has been examined as P.W.2 not supported the case of the prosecution and he completely turned hostile. In his cross- examination, nothing worth is elicited to believe the case of the prosecution. The prosecution mainly relied upon the evidence of P.W.1 and his evidence is also not trustworthy. It is categorically stated that the amount was recovered at the instance of the accused and thereafter, the hands of the accused were subjected 6 to wash. Hence, the very recovery of the bait money from the accused and FSL report, which is against the accused, cannot be relied upon.
7. P.W.3, the shadow witness, though supported the case of the prosecution, his evidence is also not trustworthy to accept the case of the prosecution. P.W.4, who has been examined in the absence of the Investigating Officer, participated in the innumerable traps and hence, his evidence cannot be relied upon. Learned counsel also would submit that micro cassette was sent along with the complaint and no discussion has been made with regard to the micro cassette. But in Ex.P4 - seizure mahazar, it is categorically stated that there is no recording of conversions and in the said recordings other sounds were found. Hence, the prosecution evidence cannot be relied upon.
8. Learned counsel for the appellant, in support of his arguments, relied upon the judgment of the Apex Court in the case of B.Jayaraj v. State of A.P. reported in 2014 Cri.L.J. 2433. Referring to this judgment, learned counsel would submit that in case of bribery with regard to demand of gratification and 7 proved the complaint disowning to have made complaint, if no other evidence adduced by the prosecution to prove demand, the demand of gratification cannot be held to be proved only on basis of complaint filed and evidence of panch witness. In the absence of proof of demand, mere recovery of tainted money from accused is not sufficient for his conviction. Proof of acceptance is essential presumption under Section 20 and the same is limited to offence under Section 7, which does not apply to offence under Section 13 of the Act.
9. Learned counsel further relied upon the judgment of the Apex Court in the case of P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another reported in (2015) 10 SCC 152. Referring to para No.20 of the judgment with regard to the proof of demand and acceptance and also para No.26, learned counsel would submit that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Sections 7 and 13 of the Act. The Apex Court in 8 this case reversed the findings of the Trial Court and convicted the accused.
10. Learned counsel also relied upon the judgment of the Apex Court in the case of Trilok Chand Jain v. State of Delhi reported in AIR 1977 SC 666 with regard to the incapacity of Government servant to show any favour or render any service, the rebuttal of presumption of the Act and the burden of proof on the accused. Learned counsel would submit that only if the foundational work has been done by the prosecution, the presumption arises and in the absence of such foundational work, the presumption cannot be drawn.
11. Learned counsel further relied upon the judgment of the Apex Court in the case of C.B.I v. Ashok Kumar Aggarwal reported in AIR 2014 SC 827, wherein it is observed that to sanction to prosecute - grant of - sanctioning authority has to do complete and conscious scrutiny of whole record placed before it
- Sanction order should to show that authority has considered all relevant facts and applied its mind - prosecution is under obligation to place entire record before sanctioning authority and satisfy the Court that authority has applied its mind. Learned 9 counsel referring to this judgment would submit that mere marking of Ex.P6 - sanction order through PW.4 is not sufficient to prove the case of the prosecution.
12. Learned counsel further relied upon the judgment of the Apex Court in the case of Mukhtiar Sing (since deceased) Through his legal representative v. State of Punjab reported in (2017) 8 SCC 136, wherein it is held that bald allegation of the complaint regarding demand and acceptance of illegal gratification by the accused, remains uncorroborated, the prosecution failed to prove the charge leveled against the accused beyond reasonable doubt. Learned counsel referring to this judgment would submit that in the case on hand, the complainant has completely turned hostile. The only remaining witness is P.W.3, who is the shadow evidence and based on the evidence of shadow witness, the accused cannot be convicted. The evidence of P.Ws.1 and 4 is contradictory to the evidence of P.W.3. When there is no consistent evidence before the Court, the Trial Judge ought not to have convicted the accused.
13. Per contra, learned Special Public Prosecutor for Lokayuktha would submit that though P.W.2-complainant turned 10 hostile, he has admitted his signature on the complaint, which is marked as Ex.P5 and he also admitted his signature on the documents Exs.P1, P2 and P4 i.e., entrustment mahazar and recovery mahazar. The witnesses, who have been examined before the Trial Court, have categorically deposed with regard to demand and acceptance. In the cross-examination of shadow witness, nothing is elicited to disbelieve the case of the prosecution.
14. Learned Special Public Prosecutor also would submit that the bait money is recovered at the instance of the accused and hence, the Court can draw presumption against accused as the said presumption has not been rebutted. The FSL report, which is marked as Ex.P15 is clear that the hand wash of the accused turned into pink colour when the recovery was made. Though the Investigating Officer has not been examined as he died, P.W.4-the Civil Police Constable, who was also the part of trap, has categorically deposed with regard to recovery of bait money at the instance of the accused. P.Ws.1, 3 and 4 have supported the case of the prosecution. Hence, this Court cannot find fault with the appreciation of the evidence made by the Trial 11 Court. The finding given by the Trial Court is based on the material available on record and the same is not perverse. Hence, it does not require any interference of this Court.
15. In reply to the arguments canvassed by the learned Special Public Prosecutor appearing for Lokayuktha, learned counsel for the appellant would vehemently contend that the presumption cannot be drawn unless the foundational work has been done by the prosecution and also referred to the proviso of Section 20(3) of the Prevention of Corruption Act. Learned counsel for the appellant would mainly submit that unless the foundational work has been done, the presumption cannot be drawn.
16. Having heard the arguments of the learned counsel appearing for the accused and the learned Special Public Prosecutor appearing for Lokayuktha and so also on perusal of the grounds of the appeal and contentions raised before this Court, the points that would arise for the consideration of this Court are:-
1. Whether the Trial Court committed an error in convicting the accused for the offence 12 punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act?
2. What order?
Points No.1 and 2:
17. Having heard the respective submissions of the counsel, before appreciating both oral and documentary evidence, this Court has to examine the complaint-Ex.P5, which discloses that the complainant went and met the accused on 09.01.2006 to enquire with regard to the sketch, for which he demanded Rs.500/- as bribe and after bargaining, the accused asked the complainant to pay Rs.300/- and an amount of Rs.100/- was collected on 10.01.2006. The complainant told the accused that he would pay the balance amount of Rs.200/- on 12.01.2006 and the accused told him that he would sign the sketch after making the payment. Hence, the complainant lodged the complaint and gave the amount of Rs.200/- to Lokayuktha Police. Based on the complaint received on 12.01.2006 at 11.45 a.m., the case in Cr.No.1/2006 was registered in K.L.A Station, Chamrajnagar for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act.
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18. Now this Court has to examine the evidence available before the Court. P.W.1, who is the entrustment mahazar witness, in his evidence, says that when he was called to Lokayukha Office on 12.01.2006 at around 1.00 or 1.30 p.m., the complainant and panch witnesses were present and Lokayuktha Inspector informed him that P.W.2 gave complaint with regard to demand of Rs.500/- by the accused, for which the complainant agreed to pay Rs.300/- and that the complainant had already paid an amount of Rs.100/- and the balance amount of Rs.200/- is to be paid on 12.01.2006. The Investigating Officer received Rs.200/- from P.W.2 and the same was given to him for counting and dictated the note numbers and P.W.3 recorded the note numbers. The Police Inspector took the said cash and smeared some powder and gave it to him. He kept the said notes in the shirt pocket of P.W.2. The Police have drawn the entrustment mahazar and thereafter, when they went to Taluk Office at Chamarajnagar, the accused was not in the office and on that day, they waited upto 5.30 p.m. Thereafter, they came back, on the next day at about 11.00 a.m., they had been to the office of Lokayuktha. The currency notes kept in the 14 almirah were taken out and given to him. Later he kept the said notes in the empty shirt pocket of P.W.2. The tape recorder was also given to him with instruction to record the conversation between him and the accused. They went to Taluk Office in a Jeep. They were waiting outside for their signal. After about half an hour, P.W.2 gave a signal and P.W.3 was also with him. Then the inspector and himself went inside the office of the accused. P.W.2 told that accused has received the bribe amount and kept the same in his shirt pocket. The Inspector asked the accused to give the bribe amount. First, the accused refused saying that he has no money and then, subsequently, he took out the bribe amount and handed over to the Police. The note numbers were compared with the numbers earlier noted and they were tallied. The said notes were placed in a cover and sealed. Then the Police washed the right hand of the accused and it turned into pink colour and the said wash was kept in a bottle and sealed. He also signed the same. The Police also washed the left hand of the accused and the same also turned into pink colour and the said solution in a bottle was sealed. The Police seized the shirt belong to the accused and identifies the same as M.O.6. The 15 explanation of the accused that he has not accepted the bribe is marked as Ex.P3.
19. P.W.1 was subjected to cross-examination. In the cross-examination, it is elicited that he did not see the complaint. The currency note numbers recorded sheet was taken by the Police. On that day, till 2.30 p.m., he was in the Lokayuktha Office. That on 12.01.2006, they did not enter the office of the accused since the accused was not in the office. The voice recorder was with P.W.2 and it was not used on 12.01.2006. He also admits that, in his presence, the voice recorder was not tested by playing in Lokayuktha Office. On 12.01.2006 evening, at the time of taking back the currency notes by the Police, the hands of P.W.1 was not washed. That on 13.01.2006, no mahazar was conducted before leaving the Office of Lokayuktha. On 13.01.2006 also the voice recorder was not tested. When, they went to the Taluk Office between 11.00 a.m. and 12.00 p.m., P.W.2 was standing outside the Taluk Office. When they entered the office of the accused, P.W.2-Venkatesh was standing near the entrance of the office of the accused. After P.W.3 gave a signal, they went inside the office of the 16 accused in the first floor. After the alleged trap procedure, the Police Inspector asked for the file from the case worker. The file was not with the accused and it was with some lady official. It is suggested that he came to know that somebody has put cash in the said shirt hanging to the chair and the said suggestion was denied. He says that he did not verify the file pertaining to P.W.1. He admits that on the explanation of the accused-Ex.P3, his signature is there. He has not verified any documents after explanation Ex.P3 was given by accused. P.W.3 told him that the accused received the bribe amount and kept the same in his shirt pocket. It is suggested that P.W.1 has thrusted the money forcibly into the shirt pocket of the accused and the same is denied. However, he admits that after the removal of cash from his shirt pocket, the hands of the accused were washed separately.
20. P.W.2-complainant, in the evidence, says that he gave a petition to the Tahasildar Office to survey and to prepare the sketch of the said land and to furnish the copy of the sketch, for which he also paid the necessary charges. Thereafter, he went and asked Mahadeva Prasad to furnish the copy of survey 17 sketch. He told that he has prepared the sketch and given it to the accused and the witness could obtain the copy of the sketch from him. After 3 to 4 days, he went to the office and asked the accused to give the sketch copy. The accused told him that he will furnish the sketch copy after signing. He did not ask anything from him and he did not demand any bribe to furnish the sketch copy. He says that in the Lokayuktha Office, the complaint was written and he signed the same and that he has not given any complaint to the Lokayuktha Office and so also not given any instructions to write the complaint. He was treated hostile.
21. In the cross examination of P.W.2 by the Public Prosecutor, it is suggested that when he went and asked the accused to give the sketch copy, the accused demanded Rs.500/- to give the sketch, the accused received an amount of Rs.100/- as advance and told him to pay the balance amount of Rs.200/- on 12.01.2006 and the said suggestion was denied. In the cross-examination, nothing is elicited with regard to the contents of complaint. However, the witness admits that when the Police questioned the accused, the accused gave his 18 explanation stating that he has forcibly kept the amount in his shirt pocket. He does not know the writings about the mahazar. But he was asked to sign and he admits his signature on Ex.P4.
22. P.W.3, the shadow witness, in his evidence, reiterated the evidence of P.W.1 regarding drawing of entrustment mahazar, coming to the office of the accused and also states that the accused was not found on 12.01.2006 and thereafter, on 13.01.2006, they went to the office of the accused and the accused was found in the office. It is his evidence that he himself, P.W.1 and P.W.2, on 13.01.2006 came to the office of Lokayuktha and Police gave the bribe amount to P.W.1 and he kept the bribe amount in the left side shirt pocket of P.W.2. The Police reminded the instructions given to them and then they went to the office of the accused at about 11.45 a.m. He himself and P.W.2 went inside the office of the accused and others were waiting outside. P.W.2 asked the accused as to whether the work was done when he went to the chamber of the accused, for which, he replied that work has been done and asked P.W.2 to give the money and to collect the survey sketch from one Geetha. Then the accused after receiving the bribe amount 19 counted the same and kept in his shirt pocket. Then he came out of the office and gave a signal to the Police. The Lokayuktha Police came inside the office and held the hands of the accused and both the hands of the accused were subjected to wash and same turned into pink colour. Then the Police got removed the bribe amount by the accused from his shirt pocket and then compared the note numbers with that of the numbers earlier recorded and they tallied. The Police also seized the said currency notes. The shirt of the accused was also got removed and subjected to wash, which also turned into pink colour. The accused gave his explanation in terms of Ex.P3 and he also signed Ex.P4, the document seized by the Police.
23. P.W.3 was subjected to cross examination. In the cross-examination, it is elicited that in the mahazar-Ex.P1, he signed at the end and the date 13.01.2006 is over written i.e., 13 as 12. When P.W.1 was holding phenolphthalein smeared notes, there was no pink colour on his fingers. When the hands of P.W.1 were washed, the fingers turned to pink colour. Thereafter, the hands of P.W.1 were not washed with soap and water. On the second day also, the said notes were given to 20 P.W.1 for verification. The hands of P.W.1 were not washed at that time. On the second day also, the phenolphthalein powder was smeared on the said notes and handed over to P.W.1 by the Police. It is his evidence that they left Lokayuktha Office at about 10.30 a.m. and reached the office of the accused at 11.45. a.m. When they entered the room of the accused, one constable was standing at a distance in the passage waiting for a signal. The said constable was not able to see as to what was happening in the accused room. They were inside the room of the accused for 5 minutes. After giving bribe to the accused, they came out, P.W.2 was standing near the door and he came further and gave a signal to the Police, by that time, P.W.2 was inside. The Police did not secure the records pertaining to P.W.2 in the office of the accused. He did not see the accused putting his signature to the sketch. He does not know whether on 10.01.2006 itself, the accused has signed the sketch and gave the entire file to Geetha. In his presence, P.W.2 told the accused that he is paying the bribe amount to the accused as demanded and requested by the accused to give the sketch copy. Three photos, which were taken in the office of the accused, were confronted to the witness and he admits in the photo No.2 that the bribe 21 amount is not seen. The Police have not taken the photo of the hand wash of the accused. In photo No.3 as the glass containing the wash is held with the hand, the colour of the wash is not seen. He admits that except the said 3 photos, no other photos were taken by the Police. It is suggested that on 10.01.2006, the accused had already completed his work and not demanded any bribe amount from P.W.2 and the said suggestion is denied.
24. P.W.4, the C.P.C., in his evidence, says that on the date of trap, the complainant gave the complaint against the accused and he reiterates the evidence of P.Ws.1 and 3 with regard to drawing of entrustment mahazar and handing over of the bait money to P.W.2 and also his visit to the office of the accused on the previous day and the absence of the accused in the office. Hence, on 13.01.2006, again they went to the office of accused. The Investigating Officer asked P.W.2 about the transaction and P.W.2 told that he asked the accused whether the sketch is ready and he had also come yesterday, for which, the accused told that yesterday he had gone to conduct a survey in the village and hence, he was not there and asked him whether he brought the money and then he took out the bribe 22 amount and handed over to the accused and the accused received the bribe amount in right hand and counted with both the hands and kept the same in his shirt pocket. The accused told him that the sketch is ready and to collect the same from one Smt.Geetha. P.W.2 also handed over the voice recorder to Investigating Officer and questioned P.W.3 about the transaction that took place in the office of the accused. P.W.3 corroborates the version of P.W.2. Then the sodium carbonate solution was prepared to wash both the hands of the accused separately and the said wash turned into light pink colour. The Investigating Officer asked the accused whether he has kept the bribe amount. Then the accused took out the bribe amount from his shirt pocket and produced. On the instructions of the Investigating Officer, P.W.1 compared the currency note numbers with that of the numbers earlier recorded and they tallied. Thereafter, trap mahazar was conducted.
25. P.W.4 was subjected to cross-examination. In the cross-examination, he admits that generally the raid will be conducted by the Police staff of different districts. At about 11.45 a.m., P.W.2 came to Lokayuktha Office and hence, they stopped 23 verifying the records of the said raid case on the instructions of the Investigating Officer. On 12.01.2006, except himself, Mahesha, Krishnamurthy, the Lokayuktha Police Officials have not accompanied for the trap. It is elicited that he participated in number of trap cases and he is having experience. He admits that on 13.01.2006, at the time of seizing the records, he came to know that one Maheshwari was entrusted to prepare the survey sketch and on the same day, at the time of seizing the records, he also came to know that Maheshwari prepared the survey sketch on 03.01.2006 and it was signed by the concerned officer on 10.01.2006. He also admits that sketch file Ex.P8 was with the staff Geetha.
26. In the further cross-examination of P.W.4, he admits that there is no hand washing photo of the accused in the photo produced to the Court. He further admits that apart from the photo, video was also taken and the Investigating Officer kept the video cassette with him and that from the place which is marked as staff, he was not able to see what was happening in the chamber of the accused. He also admits that P.Ws.2 and 3 went together inside the accused chamber and came out 24 together. They came out within ten minutes. It is suggested that accused was made to touch the said money and then the hands of the accused were washed and the said suggestion is denied. In the cross-examination, it is elicited that he does not know that on 13.01.2006, there was no work pending and the accused completed his work. He has not personally verified the seized documents.
27. Having perused both oral and documentary evidence and also the complaint averments, so also the principles laid down in the judgments referred supra by the learned counsel appearing for the accused, this Court has to examine the material available on record. No doubt, the principles laid down in the judgments referred supra are clear that there must be demand and acceptance. Mere recovery of money at the instance of the accused cannot be a ground to convict the accused and the prosecution has to prove the same. So as to drawing of presumption is concerned, it is settled law that the prosecution has to make out the foundational work to draw the presumption, until such foundational work is done, the presumption cannot be drawn. In view of the principles laid 25 down in the judgments referred supra, this Court has to examine the evidence of prosecution witnesses P.Ws.1 to 4 i.e., P.W.1 is the entrustment mahazar witness, P.W.2 is the complainant who completely turned hostile, P.W.3 is the shadow witness and P.W.4 is the CPC.
28. Learned counsel also vehemently argued with regard to sanction contending that the author of the sanction order has not been examined. No doubt, the sanction order is marked through P.W.4 and when the document is marked through P.W.4, the defence did not dispute the said document though it has been contended that the person, who accorded the sanction has not applied his mind. When the sanction order is not disputed while marking, the said contention cannot be accepted. The first ground raised by the accused cannot be availed of unless the document is disputed while marking the same. No doubt, mere marking of the document does not prove its contents. However, the defence did not object the marking of the said document in the evidence of P.W.4.
29. P.W.2 categorically says in his evidence that he went to the office of Lokayuktha, the compliant was prepared in the 26 Lokayuktha Office and he has not given any instructions to prepare the complaint-Ex.P5. However, he admits his signatures available in the complaint as well as in the mahazars. In the cross-examination of P.W.1, nothing is elicited with regard to demand and acceptance, though he was treated hostile, except eliciting that accused gave the explanation stating that P.W.1 forcibly kept the amount in his shirt pocket. With regard to the recovery of bait money is concerned, it is important to note that P.W.1, who is the entrustment mahazar speaks with regard to the entrustment and keeping the amount in the shirt pocket of P.W.2. P.W.1, in his chief evidence, says that when the Lokayuktha Police enquired the accused, the accused first refused saying that he has no money, later he took out the bribe amount and handed over to the Police. The said notes were placed in the cover after comparing and the same is sealed. It was also his evidence that the Police washed the right hand of the accused which turned into pink colour and the said solution was stored in the bottle and sealed. The evidence of P.W.1 is clear that after removing the bribe amount from the shirt pocket of accused, his hands were subject to wash. In the cross- examination, he also admits that the voice recorder was not 27 tested by playing in the Lokayuktha Office when the same was entrusted to P.W.2. It is also important to note that on 13.01.2006, no mahazar was conducted and on 12.01.2006, mahazar was conducted. The witness says that after removing the bait money from the almirah, again phenolphthalein powder was smeared on the notes but there is no mahazar at all. It is admitted by the witness that on the previous day, when they went to the office of the accused, the accused was not in the office. Hence, they came back and the mahazar was also drawn in terms of Ex.P2. Before proceeding to the office of accused, they ought to have drawn the mahazar again for having entrusted the bait money to P.W.2 through P.W.1. P.W.1 also categorically admits that voice recorder was also not tested. P.W.1 categorically admits that he did not verify the file pertaining to P.W.2. In the cross-examination, he categorically admits that after removing the cash from the shirt pocket, the hands of the accused were washed separately. The evidence of P.W.1 is contrary to the evidence of P.Ws.3 and 4. But P.Ws.3 and 4 claim that first both the hands of the accused were subjected to wash and thereafter, the amount was recovered at the instance of the accused. It is rightly pointed out by the 28 learned counsel appearing for the accused that no value can be attached to the FSL report in view of the evidence of P.W.1. P.W.3 though supports the case of the prosecution that after receiving the bribe amount, the accused counted the amount and kept the same in his shirt pocket, in the cross-examination, he admits that the hands of P.W.1 were not washed at the time of handing over the notes on the second day. Though he says that on the second day also, the notes were given to P.W.1 for verification, he categorically admits that on the second day phenolphthalein powder was smeared on the said notes and handed over to P.W.1 by the Police. I have already pointed out that for having smearing the phenolphthalein powder on the said notes, no document came into existence on 13.01.2006. It is also important to note that he categorically admits that no persons were there along with him, except P.W.2. He categorically admits that said constable was not able to see what is happening in the accused room. Only he himself and P.W.3 were there. He admits that Police did not secure the records pertaining to P.W.2 in the office of the accused. He also does not know about the accused already having signed the sketch and gave the same to Geetha on 10.01.2006. It is important to note 29 that the photographs which were confronted to the witness does not disclose anything about the procedure for seizing of currency notes and subjecting the accused for hand wash. The voice recorder also not in order regarding demand and acceptance.
30. P.W.3 categorically admits that except three photographs, which were taken, no other photos were taken with regard to the procedure adopted while conducting the trap and also the photos which are three in numbers do not disclose the same. P.W.4, who has been examined in the absence of the Investigating Officer, though claims that he came to know that the complainant told the Investigating Officer about the demand and acceptance of the money, the same is hearsay and he did not witness the demand and acceptance. He also admits in the cross-examination that he participated in number of trap cases and he has got the experience. He also admits that on 13.01.2006, at the time of seizing the records, he came to know that Maheshwari was entrusted to prepare the survey sketch. While seizing the records, he came to know that said Maheshwari prepared the survey sketch on 03.01.2006 itself, it was signed by accused on 10.01.2006 and the said sketch was also with the 30 staff Geetha. He admits that there is no photo of hand wash of the accused in the photos produced before the Court. He says that apart from the photo, video is also taken and the same was in the custody of Investigating Officer and the same was not produced before the Court. He also admits that he was not able to see what was happening in the chamber of the accused and his evidence is only hearsay evidence. But he speaks with regard to hand wash of the accused.
31. Having perused both oral and documentary evidence available on record, particularly the complaint which is marked as Ex.P5, it is the case of the complainant that he went and met the accused on 09.01.2006 to obtain the survey sketch for which the accused demanded Rs.500/-, it was settled to Rs.300/- and then the accused received an amount of Rs.100/- as advance on 10.01.2006 and told that he would sign the sketch only on payment of remaining amount on 12.01.2006. On perusal of the complaint, it is clear that sketch was not signed by the accused and he told that he would sign the sketch only on payment of the balance amount on 12.01.2006. But the admissions elicited from the mouth of prosecution witnesses are clear that the 31 sketch had already been signed on 10.01.2006 itself. The fact that the file was in the custody of Smt.Geetha is also not disputed. Though P.W.3 denies with regard to signing of sketch by the accused on 10.01.2006, P.W.4 categorically says that it was already signed and when the document was seized, it was forthcoming that it was signed on 10.01.2006 itself.
32. P.W.3 though supports the case of the prosecution, says that in his presence, no such document was seized from the accused. There are contradictions in the evidence of P.Ws.1 and
4. Learned Special Public Prosecutor appearing for Lokayuktha vehemently contend that FSL report-Ex.P15 corroborates the case of the prosecution. I have already pointed out that P.W.1 deposes that after recovering the amount from the accused, both the hands of the accused were subjected to wash and hence, FSL report does not help the prosecution. To come to the conclusion that demand and acceptance was proved, first the prosecution has to prove the demand. When the complainant has not supported the case of the prosecution and the prosecution has only relied upon the evidence of P.W.3, the answers elicited from the mouth of P.W.3 that on the second day, though the phenolphthalein powder was smeared on the notes, no mahazar 32 was conducted before going to the office of the accused and hands of P.W.1 was not washed at that time. P.W.3 says that the accused demanded the money to give the sketch. Except the evidence of P.W.3 with regard to demand and acceptance, the evidence of P.W.2 is contrary to the evidence of other witnesses. When the procedure was not conducted with regard to handing over the phenolphthalein powder smeared notes to P.W.2 on the second day, there is no mahazar with regard to entrustment of bait money and when the evidence of P.W.1 is contrary to the evidence of P.W.4, the Trial Judge ought not to have convicted the accused based upon the evidence of P.W.3.
33. The Trial Judge at para Nos.18 and 19 comes to the conclusion that mere completion of the work prior to the trap itself is not a ground to acquit the accused. P.W.4 admitted that sketch was ready on 03.01.2006. Only on the ground that survey sketch was prepared and ready, the Court cannot come to the conclusion that P.W.1, P.W.3 and P.W.4 are deposing falsely before the court. The Trial Judge failed to discuss in detail with regard to the contradictions in the evidence of P.W.1, P.W.3 and P.W.4. It is observed that the complainant has signed 33 the complaint Ex.P5 and also signed the entrustment and trap mahazar. Only on the signatures found on Ex.P5-mahazar, the Trial Judge has come to the conclusion that the work was not done and it was pending with the accused. The Court can come to the conclusion that there was no demand and acceptance of bribe by the accused and when the complainant himself has turned hostile, the Trial Judge ought to have evaluated the evidence with due care and caution and also that the material contradictions have not been taken note of by the Trial Court.
34. The other observation by the Trial Court is that if the sketch was already prepared and the report was ready, what prevented the accused from delivering the copy of the said sketch to the concerned, has not been explained by the accused and hence, accepted the evidence of prosecution witness. The reasoning given the Trial Court in para Nos.18 and 19 is not based on the material available on the record and when there is inconsistency in the evidence of prosecution witnesses, particularly in the evidence of P.W.1 and P.W.3 with regard to the recovery of money. Prior to recovery of money from the accused, the hands of the accused ought to have been subjected 34 to wash. When there are contradictions in the evidence of P.W.1 and P.W.3, the presumption cannot be drawn with regard to bait money. All these aspects have not been considered by the Trial Court. Hence, I am of the opinion that the Trial Judge has committed an error in convicting the accused. I have already pointed out that the complainant completely turned hostile and with regard to the recovery of bait money also, the evidence of the prosecution witnesses do not inspire the confidence of the Court and hence, the Trial Judge ought not to have convicted the accused. The prosecution must prove the case beyond reasonable doubt and the same has not been done. Hence, I am of the opinion that the findings of the Trial Court requires to be interfered with by this Court and the judgment of conviction and order of sentence has to be set aside.
35. In view of the discussion made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of conviction and order of sentence passed in Spl.C.No.3/2007 dated 35 30.12.2010 on the file of District and Sessions Judge at Chamarajnagar, is hereby set aside.
(iii) Accused is acquitted for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act.
(iv) The fine amount, if any, deposited before
the Trial Court, shall be refunded to the
Appellant/Accused.
(v) Registry is directed to transmit the
records to the Trial Court, forthwith.
Sd/-
JUDGE
PYR