Karnataka High Court
Shripad S/O.Pampaji Patil, Age 43 ... vs The State Of Karnataka Rep By Spl. Pp ... on 6 February, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.2728/2010
BETWEEN:
SHRI. SHRIPAD S/O PAMPAJI PATIL
AGE:43 YEARS, OCC:SERVICE,
R/O RAJENDRA NAGAR, HAVERI.
...APPELLANT
(BY SRI. SHRIKANT T PATIL, ADVOCATE)(ABSENT)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY SPL. PP LOKAYUKTHA
DHAWRAD.
...RESPONDENT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, SPL.SPP)
THIS APPEAL IS FILED UNDER SECTION 374(1) OF Cr.P.C.
PRAYING THAT THE APPELLANT BE ORDERED TO BE
ACQUITTED IN SPL.(LOK) C. NO.6/2004 ON THE FILE OF THE
SPECIAL AND DISTRICT JUDGE, HAVERI BY SETTING ASIDE
THE ORDER OF CONVICTION AND SENTENCE DATED
26.07.2010.
RESERVED FO R JUDGMENT ON : 30.1.2019.
JUDGMENT PRONOUNCED ON : 07.02.2019.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, TH E
COURT DELIVERED TH E FOLLOWING:
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JUDGMENT
The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment passed in Spl.(Lok) C. No.6/2004 dated 26.07.2010 on the file of the Court of Special Judge at Haveri convicting the appellant herein for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act') and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.2,500/-, in default to pay the fine amount, he shall undergo further simple imprisonment for three months. The Court below also sentenced him to undergo simple imprisonment for two years and to pay fine of Rs.3,000/-, for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act, in default to pay fine of Rs.3,000/-, he shall undergo simple imprisonment for further period of four months. The 3 Court below also invoked Section 428 of Cr.P.C. for set- off, if he was in custody. Being aggrieved by the judgment of conviction and sentence, the appellant has preferred this appeal.
2. The factual matrix of the case is that the appellant herein was working as a Village Accountant in Haveri. During 2004, the complainant had filed an application to enter the name of himself, his brother, mother and sisters in respect of the property bearing RS No.245/1-B/2-B, Plot No.17 and 18, Haveri since the father of the complainant died and hence, the application was filed which was pending for transfer of Katha, and that the sisters of the complainant had relinquished their rights in the property.
3. The case of the prosecution is that the appellant herein has demanded illegal gratification of Rs.5,500/- as bribe in order to do the official favour for 4 change of mutation of the names of the complainant and his family members, hence, he has lodged the complaint. Based on the complaint, case has been registered and after following due procedure, trap was laid and tainted money was recovered at the instance of this appellant and after completion of investigation, charge sheet has been filed. The prosecution in order to prove the charges relied upon the evidence of PW1 to 12 and got marked Exs.P1 to P37 and also marked MOs 1 to 21. The Court below after hearing both sides, passed the impugned judgment of conviction and sentence.
4. The grounds urged in the appeal is that the Court below failed to appreciate both the oral and documentary evidence and whether the version of the prosecution is probable or the version of defence is probable and the same has not been properly ascertained while appreciating the evidence. The 5 complainant, who has been examined as PW1 in his chief-examination on page No.2 has specifically stated that, Lokayuktha Police informed him to bring amount of Rs.5,500/-, he handed over the same on the next day of the complaint in the office of the Lokayuktha. This evidence goes to the root of the case because on the day of complaint itself, pre-trap and post-trap formally are completed and the version of the complainant cannot be believed. The other contention is that on the point of payment of bribe amount with the PI, prosecution has not treated the complainant as hostile and cross-examined him. This lacuna in the prosecution case is very much fatal and the same is not considered by the Court below.
5. The other contention is that PW1 in his chief examination regarding payment of bribe amount to the accused, the complainant simply states that the accused asked him to pay the amount and he has paid 6 the same and this clearly goes to show that to do the official favour, the amount was demanded and that amount of Rs.4,000/- towards stamp duty by the accused as well as Tahsildar, Haveri for the work to be done is accepted by PW1 and that the ill-will between PW1 and accused is elicited and admitted by the complainant. Under the pretext of payment of stamp duty, the bribe amount is paid and this is the version of the defence. There is nothing to disbelieve the version of defence because the evidence of prosecution more particularly, PW3 Shridar Patil supports the case of the accused in chief-examination and this evidence has not been taken into consideration by the Court below. PW1 in the cross-examination categorically admits that he did not remember the amount of bribe demanded by the accused to do the official favour and PW2 in the cross- examination at Page No.6 and 2 of his evidence expressed his ignorance regarding pre-trap formalities 7 and post trap formalities. In the cross-examination of PW2 on page No.8 and 9 creates doubt in the mind of Court regarding genuineness by the evidence given by the witness.
6. The other contention is that the shadow witness evidence indicates that he has not heard the conversation between the complainant and accused on the date of trap when bribe amount was paid by complainant to accused, hence, it is clear that the demand has not been proved and the Court below erroneously convicted the appellant for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act.
7. Further contention is that the defence is specific that Ex.P33 voluntary statement of accused and same is corroborated in 313 statement that the amount is collected towards stamp duty and when such being 8 the case, when the appellant has taken specific defence and the Tahasildar who has been examined also stated that the payment of stamp duty is Rs.4,000/-, the trial Court ought not to have convicted the appellant for the offences alleged against him.
8. Though the mater is listed for twice, the counsel appearing for the appellant did not choose to address the arguments and in one occasion, sought time stating that he was held up in another Court Hall. When the matter was listed for final hearing, this Court had given one opportunity to meet the ends of justice, even though he did not turn up, hence, this Court has heard the arguments of the respondent's counsel only.
9. The respondent's counsel in his arguments he contends that the appellant herein was working as Village Accountant and on account of death of the head of their family, wife and children have made an 9 application for change of Katha, hence, the appellant herein has demanded the amount of Rs.5,500/- to the official favour. Based on the complaint, case was registered and the entrustment mahazar was conducted, trap was laid and the bribe amount was recovered at the instance of this appellant. Receipt of the amount is not disputed, only defence contended that the amount collected was towards stamp duty and the Court below did not accept the defence taking into note of the evidence available on record and only contention is, the shadow witness did not mention anything about demand of bribe amount and did not dispute the fact that the shadow witness supported the case of the prosecution with regard to the exchange of money and FSL report also confirms that phenolphthalein smeres found on the seized currency notes and also report of the FSL is positive that the shirt of the appellant contains phenolphthalein smeres and 10 the accused has also not given any explanation with regard to receipt of the amount to the extent of Rs.5,500/- and same amount is not towards stamp duty and it is further contended that the stamp duty is payable by the complainant and what made him to receive the said amount is not explained by him and the appellant herein did not choose to enter into witness box to explain the circumstances as to what made him to receive the amount to the extent of Rs.5,500/- and hence, there are no grounds to entertain this appeal.
10. Having considered the grounds urged in the appeal memorandum and also the arguments of the respondent's counsel, the point that arises before this Court is whether the Court below has committed an error in convicting the appellant/accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act?
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11. Before considering the oral and documentary evidence, I would like to make a mention in brief, the charges leveled against the appellant herein. The main allegation made in the complaint and also in the charge is that the katha transfer application is pending with the appellant herein and in order to change the katha, this appellant has demanded amount of Rs.5,500/- and the complainant is not interested in making payment of the bribe and hence, he has approached the complainant-police, and amount of Rs.5,500/- is secured from the complainant and entrustment mahazar was conducted by securing official staff and thereafter, trap was laid and amount was recovered from the appellant herein, and thereafter, in order to prove the charges, the prosecution relied upon both oral and documentary evidence including MOs.
12. The first contention of the appellant herein in the appeal memorandum is that PW1 in his evidence 12 he says that on the next day of filing of the complaint, an amount of Rs.5,500/- was collected and the evidence goes to the very root of the case and on the date of the complaint, pre-trap and post-trap was conducted and hence, it goes from the root of the case. This contention cannot be accepted and no doubt in the evidence of PW1, he says that the Lokayuktha Police have told him to bring amount of Rs.5,500/- and accordingly, on the very next day, he went with amount of Rs.5,500/- to the Lokayuktha office and it has to be noted that it appears that the complainant went to Lokayuktha office on the previous day and at that time, the Lokayuktha Police told him to bring money of Rs.5,500/-, accordingly, he went with the amount and it is not his evidence that he gave the complaint on the previous day. On perusal of the complaint which is marked at Ex.P1, it discloses that he has narrated in the complaint with regard to the pendency of the application and also specifically stated 13 that he has demanded the amount of Rs.5,500/- and he was not interested to give amount, but he gave time that he has to bring money in 3-4 days, and hence, the complaint was given.
13. The Court also cannot expect the mathematical niceties when the cognizable offence is taken place and it is normal that the complainant will approach the police and the Court also could not expect that the complaint has to go along with money while approaching the Lokayuktha Police and only on the instruction, he takes money and taking of money with him is also to complete the formalities and accordingly, when he took the money, entrustment mahazar was conducted and thereafter trap was laid. Hence, the very first contention that the very version of the complainant goes to the very root of the case cannot be accepted. 14
14. The other ground urged by the appellant in the appeal memorandum is that the prosecution did not prove the demand. In order to prove the demand is concerned, the complainant and PW4 who is shadow witness both of them went to the office of the appellant therein and PW1 says that the appellant has demanded and he handed over the money which contained the phenolphthalein smeres which was entrusted to him after conducting formality of pre-trap. In support of the case of the prosecution, PW4 who is a shadow witness in his evidence stated that he accompanied the complainant-PW1, but his case is that PW1 went to inside the office of the appellant herein and he did not hear what had been transpired between PW1 and the appellant herein, since he was standing on the entrance in the office of the accused since same was pial of the office, he was getting noise of the general public and in the chief-examination of PW2, he admits that he 15 accompanied the complainant only in respect of crucial issue of demand is concerned; he says in the above manner but he gave evidence that the amount is exchanged between PW1 and this appellant and also in his chief-examination reiterates with regard to contents of the pre-trap mahazar and formalities. He says that he did not count the money but Rajaram has counted the money and no dispute with regard to amount of Rs.5,500/- was recovered from the pocket of the appellant herein and he also further says that he did not find any other people wherein this accusedwas sitting and further he says that PW1 was standing by the side of this appellant. Specific suggestion was made that PW1 was standing opposite to this appellant and hence, he was not able to see this appellant and the said suggestion is denied by PW4 and hence, it is clear that he witnessed the exchange of money between the appellant and PW1. In the cross-examination of PW4, 16 suggestion was made that he did not witness the payment of Rs.5,500/- made to the appellant herein and the same has been categorically denied and also the suggestion was made that he is falsely deposing that he went along with PW1 and staying near the door of the office of the appellant and the said suggestion was also denied.
15. It is important to note that though he says that he could not able to hear the conversation regarding demand has been made but his categorical evidence is that he could able to see the accused and the complainant and also witnessed the exchange of the money between them and also the appellant did not dispute the very fact that the amount was recovered from him. It is also not in dispute that the amount recovered from the appellant was Rs.5,500/- but the defense is that he did not count the amount; what he says immediately in his explanation in support of 17 Ex.P33 is that the amount is collected towards stamp duty and the Tahasildar, who had been examined says that the stamp duty payable is only Rs.4,000/-, and Rs.5,500/- is recovered from the appellant and the appellant has not given any explanation why he has collected Rs.5,500/- and only defence is that he did not count the amount, he being the government official, that too working as Village Accountant and even if he has collected the amount towards stamp duty, why he did not count the amount and to that there is no explanation.
16. Section 20 of the Act is clear that presumption where public servant accepts gratification other than legal remuneration. The Court has to draw the presumption. No doubt, the case of the prosecution that the appellant did not choose to rebut the same and the recovery is also proved, FSL also confirms that there was phenolphthalein smeres on the shirt pocket of the 18 accused as well as on the currency notes, when his hands were washed it turned to pink colour. When the recovery is made at the instance of the appellant, in view of Section 20 of the Act, burden shifts on the appellant/accused to rebut the presumption. In order to rebut the presumption, the accused has to lead any evidence, no doubt he gave explanation in 313 statement in terms of Ex.P33 and no dispute with regard to the amount was recovered. As I have already pointed out that if he has collected the amount towards stamp duty, he ought to have counted the same; why he has collected Rs.5,500/-, to that no explanation is given by the accused. The other contention is that there was ill-will between the complainant and the accused, if that is so, what prevented him in not counting the amount and when there was ill-will prior to the alleged trap, he ought to have been very cautious when he collected money from the complainant and there is no 19 explanation with regard to the said fact. It appears that defence of ill-will between the accused and complainant is only afterthought and there is no such explanation in his immediate reply given after the trap in terms of Ex.P33. Hence, the very defence of theory of the accused cannot be accepted. The Court below has given anxious consideration to the material available on record and short question involved in the appeal is also with regard to whether the amount is in respect of the stamp duty; as I have already pointed out, it discloses that the amount of Rs.5,500/- collected is not equal to the stamp duty, when there was defence of ill-will between the complainant and the accused, he ought not to have received the amount, instead, he should have directed the complainant to pay the amount to the government towards stamp duty through chalan. Though he was given explanation, and the same is not satisfactory to believe the version of the complainant 20 that there was ill-will between the complainant and accused. Having taken into consideration of all these aspects, I do not find any error in the impugned judgment of conviction and sentence passed by the Court below and there are no grounds to interfere with the well-reasoned impugned order of the Court below.
17. In view of the discussions made above, I pass the following order:
Appeal is dismissed.
Sd/-
JUDGE JTR