Karnataka High Court
Vijay Kumar Y Khanapur vs The State Of Karnataka on 8 June, 2015
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 8TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.1101 OF 2010
BETWEEN:
Vijay Kumar Y Khanapur
Aged about 53 years
S/o Y B Khanapur
Assistant Executive Engineer
No.2, BRRBC Sub-Division
D B Halli
Bhadravathi Taluk
Shimoga District. .. APPELLANT
(By Sri. H C Hanumaiah, Adv.)
AND:
The State of Karnataka
By Lokayukta Police
Shimoga
By State Public Prosecutor
High Court Building
Bangalore-560 001. ..RESPONDENT
(By Sri. Bahubali A Danawade, Spl. P P)
This Criminal Appeal is filed under Section 374(2) of
CR.P.C praying to set aside the judgment dated 21/22.09.2010
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passed by the Spl. Judge, Shimoga in Spl. (PC) case No.5/2007
convicting the appellant/accused for the offence punishable
under Sections 7, 13(1)(d) read with Section 13(2) of Prevention
of Corruption Act, 1988.
This Criminal Appeal having been heard and reserved for
orders, coming on for pronouncement of judgment this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by appellant-accused being aggrieved by the judgment of conviction and sentence passed by the Principal Sessions Judge and Spl. Judge, Shimoga in Special (PC) Case No.5/2007 dated 21.9.2010.
2. The brief facts leading to filing of the criminal case against the appellant-accused are that P.W.1 one Jagadeesh.G.M. filed the complaint against the appellant-accused as per Ex.P1 to the Lokayuktha Police Inspector, Shimoga alleging that he is working in the P.W.D department as first class contractor. During the year 2005-2006, he was given the work of road development by the Executive Engineer No.4, BRRBC Division, Bhadravathi from Gadamghatta to Kempaiah Thokkalu with the estimated 3 cost of Rs.60,000/- and also the development work of the roads leading to land in Sy.No.26 of Malligenahalli village with the estimated cost of Rs.60,000/-. Both the works were given to the complainant on contract basis for an amount of Rs.59,940/- and Rs.59,985/- respectively. Work order was also issued in this regard and the complainant has also entered into an agreement in this regard on 21.11.2005. Accordingly, complainant started the said work in December 2005 and completed it on 15.1.2006. He reported the completion of the said work to one Sri.Manjunath, Section Officer, who in turn, after verification forwarded the bills to his superior officer one Vijaykumar Khanapur, Assistant Executive Engineer No.2, BRRBC, D.B.Halli. In respect of the said two works, complainant had already received Rs.28,543/- and Rs.36,534/- by way of cheque and bill was due to him for an amount of Rs.30,957/- and Rs.22,966/- respectively. When the complainant met the Assistant Executive Enginner on 20.1.2006 and enquired about the payment of bill amount, the accused demanded 5% of the amount payable to the complainant which comes to Rs.2,700/- to put his signature to the check 4 measurement bills, for which, complainant informed that he is not having the amount and after the payment of bill amount he will pay the same. As the bills were not at all signed, the complainant contacted the Assistant Executive Engineer Sri.Vijaykumar Khanapur, the appellant-accused herein, over phone and when enquired about the payment of bill amount, the appellant-accused told that he will sign the bills only after the payment of bribe amount. As the complainant was not interested to pay the bribe amount for getting his work done, he approached the Lokayuktha Police Inspector and requested to take legal action against him. In the complaint he has also mentioned that he has brought the amount of Rs.2,700/- demanded by the appellant-accused and whenever asked, he will produce the same.
3. On the basis of the said complaint Ex.P1, case was registered in Shivamogga Lokayuktha Police station Crime No.1/2006 against the appellant-accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the 5 Prevention of Corruption Act, 1988 and received the FIR as per Ex.P38.
4. After conducting and completing the investigation, the investigating officer filed the charge sheet against the appellant- accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. Then charge was framed and plea was also recorded. As the appellant-accused denied the allegations, matter was posted for conducting the trial. On the side of the prosecution, witnesses P.Ws.1 to 7 were examined, documents Exs.P1 to P38 and the materials objects MOs.1 to 12 were marked and on the side of appellant-accused, documents Exs.D1 to D3 were marked.
5. After considering the oral and documentary evidence and also merits of the case, the trial Court has ultimately convicted the appellant-accused for the said offences. Being aggrieved by the same, the appellant-accused has preferred this 6 appeal on the grounds as mentioned at Sl.Nos.I to XIV of the appeal memorandum.
6. Heard the arguments of the learned counsel appearing for the appellant-accused and also the learned Spl.PP for the respondent-Lokayuktha.
7. Learned counsel for the appellant has submitted that two works were entrusted to the complainant in the year 2005 with regard to maintenance of roads. Ex.P28 is the measurement book maintained in this regard. As per the complaint averments, it is the contention of the complainant that he started the said work in December 2005 and completed it by 15.1.2006. It is his submission that in the measurement book Ex.P28, the date of recording measurement is mentioned as 5.12.2005, which itself clearly shows that false case has been registered against the appellant-accused by the complainant in collusion with the Lokayuktha police. He has submitted that the measurement work was completed on 19.12.2005. Regarding the allegation in the 7 complaint that on 27.1.2006, he enquired with the accused over phone about the payment of bill amount and as the accused reiterated that if he paid the bribe amount he will sign the concerned bills, the prosecution has not produced the call details to establish the said fact. It is also his further submission that prosecution has not at all proved with cogent and satisfactory material the demand and acceptance of the bribe amount i.e., 5% of the bill amount. Looking to the oral evidence of P.W.1 complainant and other witnesses there is no corroboration and even there is no consistency in the evidence in the case of the prosecution. The evidence of prosecution witnesses itself shows that bills under Exs.P29 and P30 were not at all signed by the complainant agreeing the contents of the bill. Unless and until the bills are signed by the complainant himself, the question of accused withholding the said bills and demanding the bribe amount does not arise at all. The complainant along with P.W.3 and the Lokayuktha police falsely implicated the accused in the case. He has submitted that even with regard to the entrustment mahazar under Ex.P2 and the trap mahazar under Ex.P3, there is 8 no corroboration with the oral evidence of the prosecution witnesses. The sanction order produced in the case also shows that sanctioning authority without application of mind and without perusing the materials and only on the basis of the report submitted by the Lokayuktha police, has issued the sanction order Ex.P32, which is not in compliance with the requirement of Section 19 of the Prevention of Corruption Act, 1988. The learned counsel has also submitted that the appellant-accused has properly explained under what circumstances the tainted currency notes were kept in his shirt pocket, even then, the trial Court has not at all considered this aspect. The trial Court has wrongly read both oral and documentary evidence and has wrongly convicted the appellant-accused. The judgment and order of conviction and sentence imposed on the appellant-accused are not in accordance with the materials placed on record and hence, they are not sustainable in law. Accordingly, it is submitted to allow the appeal and to set aside the judgment and order of conviction challenged in this appeal. In support of his contention, learned counsel for 9 the appellant-accused has relied upon the following decisions filed along with memo of authority dated 19.2.2015:
1. 2011(6) SCC 450 in the case of State of Kerala and Another Vs. C P Rao.
2. 1997 SCC (CRI) 283 in the case of M K Harshan Vs. State of Kerala.
3. 2010 (1) SCC (CRI) 607 in the case of State of Rajasthan Vs. Mohan Lal.
4. 1980 SCC (CRI) 121 in the case of Panalal Damodar Rathi Vs. State of Maharashtra.
5. 2008(1) KAR.L.J.33(SC) in the case of State of Karnataka Vs. Ameer Jan.
8. Per-contra, the learned Spl.P.P. during the course of his arguments submitted that only on the ground that there are some irregularities in the sanction order, the other materials produced by the prosecution cannot be ignored by the Court. There may be some minor discrepancies in the evidence of the prosecution witnesses. But regarding the allegation of demand and acceptance of bribe amount, the prosecution has placed acceptable and satisfactory materials. It is also his submission that regarding the trap proceeding under Ex.P3, photographs were taken and 10 produced in the case, which clearly shows the appellant-accused taking out the tainted currency notes from his shirt pocket and producing before Lokayuktha police. He also made the submission that even though there was an opportunity for the appellant-accused to explain the things while he was examined under Section 313 of Cr.P.C., he has not offered his explanation. Even the explanation offered by the accused as per Ex.P33 shows that the tainted currency notes were recovered from the possession of the accused and under what circumstances he came into the possession of the tainted currency notes, it is not properly explained with the cogent material. He has finally submitted that the trial Court has extensively considered both oral and documentary evidence adduced before it and has rightly convicted the accused holding that prosecution has proved its case beyond all reasonable doubt. No illegality has been committed by the trial Court and there is no merit in the appeal and same may be dismissed.
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9. I have perused the judgment and order of conviction passed by the trial Court, oral evidence of P.Ws.1 to 7 and the documents Exs.P1 to P38 and Exs.D1 to D3 and also perused the grounds urged in the appeal memorandum, submissions made by learned counsel on both sides, which are referred above and the decisions relied upon by the learned counsel for the appellant- accused, referred to above.
10. The first point framed by the trial Court for consideration is with regard to validity of the sanction order said to have been issued by the concerned authorities which is produced before the trial Court as per Ex.P32. The learned counsel for the appellant-accused has contended that the said sanction order is without application of mind and it is also not in compliance with the requirement of Section 19 of the Prevention of Corruption Act. In this regard I have perused Ex.P32 and also the reasoning adopted by the trial Court on point No.1 framed for consideration. I have also perused the decisions relied upon by learned counsel for the appellant-accused before the trial Court in 12 this regard, which are also referred in the judgment of the trial Court.
11. Looking to Ex.P32, it shows that the investigating officer who completed the investigation in the matter has submitted his final report and also the materials collected during investigation to the concerned authorities requesting to issue the sanction order for prosecution of the appellant-accused. The averments in Ex.P32 shows that it is not that the final report submitted by the investigating officer alone has been considered by the competent authority while issuing the sanction order, but even the materials collected during the course of investigation were also sent to the competent authority along with the final report of the investigating officer for issuing the sanction order. Therefore, the trial Court has rightly observed in its discussion while recording its finding on point No.1 that the decision relied upon by the learned counsel for the accused are not at all helpful to the defence in contending that the sanction order is not in accordance with law and there is no mental application by the 13 concerned authorities before issuing the sanction order under Ex.P32.
12. I have also perused the decision relied upon by the learned counsel for the appellant-accused before this Court in support of his arguments, reported in 2008(1) Kar.L.J. 33 (SC) in the case of State of Karnataka Vs. Ameer Jan, wherein their lordship's of the Hon'ble Supreme Court has laid down the preposition as under:
(A) PREVENTION OF CORRUPTION ACT, 1988, Section 19 - Sanction to prosecute - Invalidity of - Facts constituting offence charged against accused must be referred to on face of sanction, or it must be proved, by adducing evidence aliunde, that those facts were placed before sanctioning authority to enable that authority to make up its mind whether to grant or withhold sanction - Where materials collected against accused were not placed before sanctioning authority, order of sanction passed solely on basis of report made by Inspector of Police, which was not even brought on record, is invalid.
Perusing the facts involved in the said reported decision and also the principle enunciated by the Hon'ble Supreme Court, it clearly shows that in the said case the sanction order was issued only on 14 the basis of the report submitted by the investigating officer and the other materials collected during investigation were not at all sent to the competent authority for issue of sanction order. But as I have already observed above, in the case on hand, the materials clearly show that it is not only the report of the Investigating Officer but along with his report, all the materials collected during investigation were also made over to the sanctioning authority for issue of sanction order. Hence, I am of the opinion that the said decision also will not come to the aid and assistance of the appellant-accused to contend that the sanction order issued is without application of mind and it is not in accordance with the requirements of Section 19 of the Prevention of Corruption Act. Therefore, there are no valid reasons for this Court to differ with the finding recorded by the trial Court on the validity of the sanction order at Ex.P32.
13. Now coming to the merits of the case, two contract works for the improvement of roads as mentioned in the complaint were entrusted to the complainant and it is also an 15 undisputed fact that part of the amount out of the total estimated cost was paid to the complainant-contractor by issuing two cheques and it is the contention of the complainant that he has taken up the work in the month of December 2005 and completed the same by 15.1.2006 and in this regard, the department was due to pay the remaining bill amount to the complainant. In this regard when the complainant approached the appellant-accused on 20.1.2006 and enquired regarding payment of remaining amount and passing of the two bills, at that time, accused demanded 5% of the bill amount as bribe amount. It is also the further case of the prosecution that even on 27.1.2006 when the complainant enquired regarding payment of the bill amount with the accused over phone, at that time also the accused insisted that he will pass the bill only on the complainant paying the bribe amount amounting to Rs.2,700/-. As the complainant was not interested to pay the bribe amount, on 27.1.12006 itself he went to Lokayuktha office and lodged the complaint before the Lokayuktha Police Inspector. It is the case of the prosecution that the Lokayuktha Police on the basis of the 16 said complaint registered the case and issued FIR and then he secured two panch witnesses, P.W.2-Shankargowda Patil and P.W.4-G.Dandyappa and he introduced the panch witnesses to the complainant and shown the complaint to the panch witnesses and asked the panch witnesses to verify about the correctness of the contents of the complaint with the complainant. The evidence of P.Ws.2 and 4, the panch witnesses also shows that in their presence complainant produced Rs.2,700/- before the Lokayuktha inspector i.e., the intended bribe amount to be payable to the accused and in their presence phenolphthalein powder was smeared to the notes ie.., 5 currency notes of the denomination of Rs.500/- and two currency notes of the denomination of Rs.100/- and the numbers and denominations of the said notes were also noted in a piece of paper.
14. The Entrustment Mahazar was also drawn as per Ex.P2 in the office of the Lokayuktha about the entrustment proceedings conducted in the Lokayuktha office. I have perused the contents of Ex.P2, the Entrustment Mahazar, which is signed 17 by the panch witnesses P.Ws.2 and 4, the Lokayuktha Inspector and also the other staff who were present in the Lokayuktha office . Perusing the contents of the said mahazar it also shows that the Lokayuktha inspector after reading over the contents of the complaint to the panch witnesses, asked them to get the confirmation about the averments of the complaint from the complainant. It is mentioned in Ex.P2 that after the averments of the complaint and the FIR were made known to them, they also enquired with the complainant P.W.1 Jagadeesh G.M. and he also told that the contents of the complaint are true and correct.
15. The evidence of P.W.6, Investigating Officer also shows that the Entrustment Mahazar proceedings were conducted in the Lokayuktha office in his presence and the complainant produced Rs.2,700/- before him and on his instruction, the police constable Sri.K.V.Vadiraj smeared the phenolphthalein powder to the currency notes. It was deposed by P.W.1 complainant, P.Ws.2 and 4, the panch witnesses and P.W.6 the Investigating officer that after smearing the phenolphthalein powder to the currency 18 notes, the notes were kept in the left side shirt pocket of the complainant and the investigating officer instructed the complainant that he has to go to the office of the accused and enquire about his work. In case if the accused demands the bribe amount, only then he has to take out the notes and give it to the accused, as otherwise, he should not touch the said currency notes.
16. The Entrustment Mahazar proceedings under Ex.P2 was also confronted to the witnesses P.Ws.1, 2, 4 and P.W.6, the investigating officer. They all deposed before the Court on oath that in their presence the Entrustment Mahazar proceedings were conducted in the Lokayuktha office and they have also identified their signatures before the Court. So far as the complainant- P.W.1 going to the office of the Lokayuktha police and lodging the complaint as per Ex.P1, producing the intended bribe amount of Rs.2,700/- and conducting of entrustment mahazar proceedings, I have carefully perused the cross-examination of these witnesses. Except making the suggestions that complainant 19 had not at all been to the accused and accused never demanded the bribe amount of Rs.2,700/- i..e, 5% of the pending bills, nothing has been elicited from their mouth so as to disbelieve the oral evidence of the prosecution witnesses and also the contents of the complaint Ex.P1 and the Entrustment Mahazar Ex.P2. Therefore, the materials placed on record, both oral and documentary, satisfactorily establishes the fact that the entrustment mahazar proceedings as per Ex.P2 was conducted in the Lokayyktha office on 27.1.2006 in view of the complaint lodged by P.W.1 as per Ex.P1.
17. When it is the allegation of the prosecution that for passing of the pending bills of complainant-contractor the accused demanded and accepted the bribe amount of Rs.2,700/- i.e., 5% of the bill amount, the burden is on the prosecution to establish the said fact with cogent and satisfactory material. Perusing the oral evidence of P.W.1 complainant he has stated on oath that after completion of the entrustment mahazar proceedings again they went to the Lokayuktha office at 4.00 p.m. 20 and then the complainant, the panch witnesses, Lokayuktha Inspector and other staff of Lokayuktha left the Lokayuktha office at 4.00 p.m. and went to Marashettihalli. He has also deposed in his evidence on oath that he went inside the office of the accused and met the accused and the panch witness Shankargowda Patil was at the distance of 10 ft. from him. The complainant asked the bill amount with the accused, for which, he asked the complainant as to whether he has brought the amount for which, he has replied that he has brought the amount and from his pocket he took out Rs.2,700/- and gave it into the hands of the accused. The accused received it and kept it in his pocket. He has also deposed that the accused after receiving Rs.2,700/- from him noted down M.B.number in respect of the work of the complainant in a slip of paper and kept that slip also in his pocket and then the complainant came out of the office and gave the pre- arranged signal. Even in the cross-examination by the learned counsel for the accused he has deposed that after he paid the amount to the accused the accused kept the amount as well as the chit in his pocket and immediately the accused went to his 21 residential quarters. When it was suggested to P.W.1 that in between the place where the accused was sitting in the office and the doors there is almirah and when it was further suggested to P.W.1 that as the almirah is in front of the place where the accused was sitting, the accused will not be visible, but the witness has denied the said suggestion. The further suggestion to P.W.1 during the cross-examination that in respect of his work the accused asked him to give details in writing and the details which he got prepared in a chit was given to the accused and accused has kept that chit in his pocket and then went to his residential quarters, was also denied by the witness. It was also suggested to P.W.1 that with regard to the explanation said to have been given by the accused under Ex.P33 some portions of the said statement were got written by the Police Inspector by bringing pressure on the accused, was also denied by him.
18. Looking to the oral evidence of P.W.2 who is a panch witness, in his examination-in-chief, he has also deposed that at 4.00 p.m. they left the Lokayuktha office and reached 22 Marashettihalli. He has further deposed that himself and complainant Jagadeesh went inside the office of the Engineer and other trap party were hiding at some distance and when they went inside the office of the accused it was around 5.00 p.m. and when complainant enquired the staff whether the Engineer is there or not he was informed that Engineer had been to Nellore and will come in half an hour and hence, himself and complainant Jagadeesh waited He has also deposed that at 6.55 p.m. the Engineer and other two came in a car, went inside the office and after ten minutes one person came out from the office and went in a car. Then complainant Jagadeesh went inside the office of the accused and greeted the Engineer. P.W.2 has stated that he was standing at a distance of 20 ft. from the said place. He has not heard the talks between the complainant and the Engineer but was observing what was going on between the two. He has further deposed that at that time complainant Jagadeesh took out the amount from the left side pocket of his shirt and gave it to the Engineer and Engineer has kept it into his pocket and he has also prepared one chit and kept it into his pocket and thereafter, 23 complainant came outside the office and gave pre-arranged signal and at that time, the said Engineer went to his residential quarters, which was nearby office and thereafter the Lokayuktha officer, P.W.4 Dandyappa and the staff of Lokayuktha went to the quarters. The witness has also identified the accused before the Court (as stated in his deposition. )
19. In the oral evidence of P.Ws.1 and 2, they have also spoken that the Lokayuktha Staff caught hold both the hands of the accused and prepared sodium carbonate solution in two separate bowls and taken hand wash of both the hands in separate bowls, which turned into pink colour and the same was secured in two bottles and they were sealed. During the course of cross- examination P.W.2 has also admitted that in between the place where accused was sitting and the door there was an almirah and if a person stood outside, the almirah would be obstructing the same. When it was suggested to P.W.2 that as he was standing at the distance of 20ft. he has not at all observed what was happening between complainant and the Engineer and he has not 24 seen complainant giving amount to the accused and accused receiving the amount from the complainant, the said suggestions were denied by him.
20. P.W.3- Manjunath R.B., who is the Assistant Engineer, has deposed in his evidence in his examination-in-chief that the complainant contractor started his work in November 2005 and as a Section Officer himself and his superior officer, the accused, were supervising the said work and after completion of the work he used to prepare the bills and submit it to the accused, who in turn, after verification, was taking further steps in the matter. He has also deposed that after the complainant completed his work he verified the same and after conducting measurement and mentioning the same in the M.B.book he submitted the bills to the accused on 26.12.2005. 20 xerox copies of the M.B.book is as per Ex.P28 and the relevant entry pertaining to the complainant is as per Ex.P28(a) and the final bills pertaining to the complainant are at Exs.P29 and 30. He has also deposed that it is not compulsory that the complainant has to sign the bills Exs.P29 and 25 30 before him, but complainant can also sign those bills in the divisional office. In the cross-examination by the learned counsel for the accused he has admitted that the authority to release the amount is Executive Engineer of the divisional office. He has further deposed that after submission of the bills, the accused would verify whether measurements are correct and thereafter, he would forward the bills to the Executive Engineer and finally the Executive Engineer will pass order for passing the bills. He is not having the documents with him to show that he has submitted the bills to the accused. The witness denied the suggestion that on 26.12.2005 he has not at all submitted the bills to the accused and those bills were with him only. He has admitted in his evidence in the cross-examination that in the third party inspection it was mentioned that the work executed by the complainant was not properly done. He has also admitted that Ex.D1 is issued from the office of the Deputy Commissioner, Shimoga on 21.6.2006 that the work entrusted to the complainant was not properly executed.
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21. P.W.4 G.Dandyappa who is also one of the panch witness in his examination-in-chief has deposed that the Lokayuktha police, himself and another panch witness and the complainant left the Lokayuktha office at 4.00 p.m. and reached Marashettihalli. Complainant Jagadeesh and panch witness P.W.2 patil went inside the office of the accused at about 5.45 p.m. and at about 6.40 p.m., complainant came out from the office and wiped his face with handkerchief and gave pre-arranged signal. He has also deposed that immediately himself and the Inspector went inside the office and saw the accused sitting in his chair and he has also deposed that hand wash of both the hands of the accused was taken in the sodium carbonate solution prepared and the solution has turned into pink colour and the same was secured in two separate bottles and sealed. When Lokayuktha Inspector asked the accused for the amount, accused took out the amount from his shirt pocket and kept on the table in front of the police inspector and when verified they were the same notes which were produced in the Lokayuktha office by the complainant and the numbers were tallying. Then the shirt of the accused was also got 27 removed and when the said pocket was also washed in the sodium carbonate solution, it also turned into pink colour. This witness also identified his signature in the trap mahazar Ex.P3 and during the course of cross-examination suggestions were made that in his presence in the Lokayuktha office solution was not prepared and he was not informed about the complaint and the hand wash of the accused was not taken in the said solution nor it turned into pink colour and he is giving false evidence, all these suggestions were denied. He has also denied the further suggestion that the complainant after giving the amount has not at all given the pre- arranged signal to the inspector and he is deposing falsely.
22. P.W.6, the Investigating Officer in his evidence has deposed in detail about the investigation conducted in the matter and during cross-examination when it was suggested that at 7.20 p.m. he had not at all been to the residential quarters of the accused and accused was not at all sitting in the chair in the residential quarters and he is deposing falsely has been denied. He has also denied the suggestions that he has not at all enquired 28 with the complainant and panch witness nor recorded their statement and he is giving false evidence and the accused did not produce Rs.2,700/- from his shirt pocket and that hand wash of the accused was not at all taken in the sodium carbonate solution nor the solution turned into pink colour.
23. Perusing the above materials, which are referred to above, it clearly shows that the raiding party went to the residential quarters after the complainant came out from the office of the accused and gave prearranged signal. The contents of Ex.P3 the Trap mahazar, oral evidence of P.W.1- complainant, P.W.2- shadow witness, P.W.6-the Inspector, the contents of Ex.P3 the trap Mahazar are satisfactorily proved by the prosecution. It is no doubt true that P.W.4 Dandyappa has stated that the trap mahazar proceedings were conducted in the office of the accused. But in this regard I have also perused the judgment of the trial Court and the appreciation of evidence. The trial Court has observed in its judgment that the office of the accused and the residential quarters were within the same premises and 29 nearer to each other. Therefore, only on the basis of the said evidence, the entire case of the prosecution cannot be rejected, when it is otherwise corroborated by other material particulars.
24. P.W.3 Manjunath in his evidence has stated that the bill amount payable to the contractor was due and he submitted the bills to the accused. Even it is not the case of the defence that the entire amount pertaining to two works entrusted to the complainant was already paid to him and nothing was due. I have perused the document Ex.D1 the letter from the Deputy Commissioner's office. It is no doubt true in the said letter it is mentioned that the work executed by the complainant was not proper. But the said letter pertains to the month of June 2006 i.e., five months after the trap mahazar was conducted against the appellant-accused. As on the date of lodging the complaint and conducting trap mahazar proceedings the letter under Ex.D1 was not at all there.
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25. With regard to complainant paying the amount to the accused and recovery of the amount from the possession of the accused, prosecution has placed consistent material. With regard to the contention of the learned counsel for the accused that as there were serious objections with regard to the quality of the work executed by the complainant, the question of making the payment of the bill amount or the accused purposely withholding the bill amount does not arise is concerned, if for that reason the bill amount was not paid then the accused would have offered the same as his explanation when he has been examined under Section 313 of Cr.P.C. In the statement recorded under Section 313 of Cr.P.C. in question No.37 it was specifically asked to the accused whether he wanted to say anything more, for which he has answered no. He has offered his explanation as per Ex.P33 immediately after the trap proceedings. As per his explanation, when the complainant met him at his office, he was under strain and stress as he had attended the work and as there was a strike by the employees, he was also warned by his superiors that he will be kept under suspension and under these circumstances, when 31 the complainant approached and asked about his bill, he asked the complainant to mention the details about his work in a slip of paper and when complainant gave such paper, he kept it into his pocket. But perusing his explanation at Ex.P33 about the tainted currency notes, he has not at all mentioned anything about the notes. In the cross-examination of P.W.1 it was suggested to him that some portions of Ex.P33 were got written by the police inspector by bringing pressure on the accused, which was denied by him. Even the accused has not accepted that Ex.P33 contents are according to his free will and volition. If he has not at all received the bribe amount and has not at all touched the tainted currency notes nor produced it before the Lokayuktha Inspector, there was no reason for the hand wash taken in the sodium carbonate solution turning into pink colour. A suggestion was made to P.W.6 that the Investigating Officer has not taken hand wash of the accused in the sodium carbonate solution nor the solution turned into pink colour, but the said suggestions were denied by the witness.
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26. I have also perused the document FSL report Ex.P34. In the opinion column it is mentioned that the presence of phenolphthalein is detected in both left and right hand finger washes of the AGO. All the materials i.e., oral evidence of prosecution witnesses, the contents of Ex.P3 the trap mahazar and contents of FSL report Ex.P34 satisfactorily establishes the fact that the appellant-accused received the bribe amount from the complainant and same was recovered from his possession. Therefore, the defence of the accused cannot be accepted. Regarding the demand and acceptance of the bribe amount the prosecution has placed the materials, which are worth believable. It is no doubt true that P.W.3- Manjunath, the Section Officer in his evidence has deposed that he has prepared the bill on 26.12.2005, but only on the basis of this stray sentence the entire other materials placed by the prosecution cannot be disbelieved. The Court has to appreciate the entire materials on record both oral and documentary and to see what is the cumulative effect of it as to whether it would establish the case of the prosecution or not. Looking to the judgment and order of conviction passed by 33 the trial Court it is seen that the trial Court has discussed about all these materials.
27. I have also perused the decisions relied upon by the learned counsel for the appellant-accused, referred to above. But, the facts and circumstances in those reported decisions and the facts and circumstances in the case on hand are not one and the same, as such, the said decisions will not come to the aid and assistance of the defence of appellant-accused. The trial Court has rightly come to the conclusion in convicting and sentencing the appellant-accused. There is no illegality in the impugned order passed. There is no merit in the appeal.
Accordingly, appeal is dismissed. The judgment and order of conviction passed by the trial Court is hereby confirmed.
Sd/-
JUDGE bkp