Karnataka High Court
B T Ramesh S/O Late B V Thimmarayappa vs State By Cbi/Spe/Bangalore on 20 August, 2010
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IN THE HIGH COURT OF KARRATAKA RT aRNGALOREj*,
DATED THIS THE 26" DAY OF AUGUST_2O1OiIf:;'I
BEFORE A
THE HON'BLE MR.JUsTIOE R}v;§1RTOII=;I°I
CRIMINAL APPEAL NO.1E2T QF 2002II"n
BETWEEN I I h I 3 O I
B T RAMESH .'«, .° *.u R,
s/O LATE B V THIMMARAY3?PAffiA"R
AGE 44 YEARS ; =-*: 1_*{;.*,
No.33, 8"fcROss,~_RsANTRANAGRR§'
BANGALORE "2 1 "2 -'%"x "+
NOW WORK:Rs_Rs=O _ IA.' '**
DEPUTY STATTOR MANAGER TCOMMERCIAL)
MYSORE RATLWAT STATION' j
M¥sORE=. "*-I = -. ' -*..A99ELLANT
(Ex sRI.O RROARAR g SR1 C V NAGESH, ADVS.)
Ig STATE BY C3:/STE/BRRGRLORE
R_*REeRRsENTRO~RT'CENTRAL GOVERNMENT
STAEDING COUNSEL ..RESPONDENT
.'Q_(RTTRR1fR3PRAsANNR KUMRR, ADV. FOR '. * sR: C R JAOHRV; ADV. FOR RESPONDENT/CB1) O C§LfR IS ETLED UNDER SECTION 374 cR.P.c BY THE ADVOCATE FOR THE APPELLANTI ACCUSED AGAINST .. TH}:".'- JUDGMENT DATED 4 . 9 . 2002 PASSED BY TEE XXI ' .}XDDL.; C.C AND S. J AND SPL. JUDGE'. FOR CB1 CASES, BANGALORE IN SPL.CC.NG.85/1999 CONVICTING THE RRRLLART/Rccusam FOR THE OFFENCE PUNISHABLE U/3.7 13(2) RXW SEC.13(1)(d) OF THE'. PREVENTION OF CORRUPTION ACT, 1988 AND SENTENCING HIM TO UNDERGO R.I FOR 3 YEARS AND TO PAY A FINE OF RS. 5000/" (RUPEES FIVE THOUSAND) I/D TO UNDERGO R.I FOR 3 MONTHS FOR THE OFFENCE UNDER SECTION 7 OF P.C ACT AND FURTHER SENTENCING TO UNDERGO R.I FOR 3 YEARS AND TO PAY A FINE OE' RS.5000f" (RUPEES FIVE TROUSAND) IXD TO UNDERGO R.I FOR 3 MONTHS FOR THE OFFENCE UNDER SECTION 13(2) Rfw SECTION 2 13(1(d) 0? THE 9.: ACT, 1988. THE sussranixve SENTENCES ON BOTH COUNTS TO RUN coNcuRRBNwLY;afgi. THIS APPEAL COMING FOR HEARING on @315 bar} "
THE COURT DELIVERED THE FOLLOWING:
Juoenemwe This appeal is tfile&7aichallenging'vEtheeuL Judgement of conviction dated 4.9;2002 gagged by V the XXI Additional City Civil aha Seesione Judge and Special Judge ufor CB§fl;Caeee%i.pangalore in Spl.CC No.8§/i§99 §oonviotinn _the! appellant for the offence _§§e;sn§§1e Tunoerowaeotion 7 and Section 1312} read firth eegfion 13{1)(d) of the Prevention at c§§xgp£icn Act, 1988 and sentencing him to «Ufid€F§5 R: tf§§7$$ years for the offence under 5ectidnL7 of the Prevention of Corruption ifict ané to gay a fine of Rs.5,000/~ in default to '=g5d¢gg¢f.g1'ff¢r-- 3 months and further sentencing him _to»~undergo R1 for' 3 years for the offence '»undex"séction 13(2) read with Section 13(1){d) of tithe Prevention of Corruption Act,1988 and to pay x"~fif a fine of Rs.5,000/-- in default to undergo RI for 3 months.
2. The case of the prosecution is that the appellant was functioning as public servant in Q' 3 the capacity of Chief Commercial Wfiarqel Supervisor at the Outward Parcel Officegpgfiitfifié Railway Station, Bangalore during the_peried.frem.p"
18.2.1998 te 20.2.1998. with 8i'8i8wVAt§*,a§£ly8« ecuniar advanta e b corru t er ille al meansr y 9 _g A _ 9 4 or otherwise by abusing hie official 8o8;¢:8n as public servant, the, accuéedg demanded "Rs:2,500/-- as illegal gratifieatiohu; ethéeii than legal remuneration _frpm :§rit;Flfieili 'tel be given on monthly hasie aa a aatiye er regard for showing official favafif ef'eending~the parcels boeked by Sri F:Moiliddaiip:threagh Railways. It is alleged against "the_ appellant' that on 18.2.1998 Sri F.Mqili booked 9 bpndles to New Delhi which were iurgently._required to be loaded on that day "iteelf; when Sri F.Moili personally requested the appellaht for doing the needful fer sending the 'i"k "parcels. on the same day itself, the appellant i'repeated the demand of Rs.2,500/-- as monthly E"x:Weellection. When Sri F.Moili refused to give the amount, the appellant detained the parcels and warned him of severe consequences in future if he failed to pay the bribe demanded. On 19.2.1998, the appellant conducted surprise check of the \-
//7' 4 parcels booked by Sri E'.Moili on 18.2;.'"l998 without complying any surprise check and imposed penalty of Rs.3,949/-. u when Sri E'.Moili met the appellant it with the dispatch of the;Wpa$cé1sV.§o§xaafp§hl 18.2.1998, the appellant rapeated the aamana of' "
Rs.2.5G0/-- and insisted _f_or»,__pa_yment«_Vof 'penalty for the whole conai'gnmen.t,gpatiaerylfiae he will be booked under the Penal.:"3Dr0V;isl«£3na'*.{cf the Indian Railways €detaiVr1.in.g:V""'the goods. Sri F.Moili pa;d;tte sing pf as{3;949/M on 19.2.1998 and darnanded and accepted Rs.2,50()«/"j_ on the complainant Sri F.Mo.j.l'iu. andV".tVherel>y it is alleged that the ';appé11é5; tommitted an offence punishable under Atfiectipohtéfif! the Prevention of Corruption A¢tr;93s;_]:' It is further alleged against the pu"lappel5lant ' that while the appellant was 4 .«:Wf_unctioning as public servant in the capacity of Chief Commercial Parcel Supervisor at the Outward Parcel Office, City Railway Station, Bangalore during the period from 18.2.1998 to 20.2.1998, by //5' 5 corrupt or illegal means or otherwise by abusing his official position as such publicm sextant' obtained for himself pecuniary advantage to the:
tune of Rs.2,500/-- from Sri Ffifioili and thereby' committed an offence punishablen under _SeCfiion, 13(2) read with lV3(__1}_(xci},: 'ltheltl Prevention of Corruption Act}l988.
4. It is also Hrurthelf allegee; against the appellant that by abuaing his official position as public flFaereante}l5urinaiV.the period from 21.6.l997-fitex.§&;2;l§§é fiat"wCity Railway" Statien, Bangalorei 'nahiteallynieemanded and accepted for himself as illegal gratification other than legal remuneration "amounting to various denominations .from _Andifferent agents/persons viz., Sri lshamsufiiarV:*Kothandapani, Mullaram, Y.Ramesh Kufiar,f"ti C.Channabasappa, R.Krishnamurthy, fl¥JlT,Lakshaikantha Rao, C.Raju, Damodaran etc., as a lzmotine or reward for doing official favour of if-__aending the parcels booked through Railways and thereby committed an offence punishable under Section 13(1)(a) of the Prevention of Corruption Act, 1988.
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5. The learned Special Judge for CB1 Cases after securing the appellant before .éfié*{¢onr:f.
framed charges against him. Thereafter; *the * prosecution in order to prose its case'eXaminodi in all 19 witnesses and" got 'marked =Exts.PlH to °, 9193. The prosecution also troducedyfiiostl to 8 in support of its'pcase.h the udefence" of the appellant being one §fLt¢£§1_a§fi:§li he has got marked Extslfiigto fiéé in his detenoe and has not examined ;ah§;_ni£néssegf_9§_551$' behalf. However, after "Hhearin§i¥tthet£*orosecgtion, the learned Special "dudoéEf1easi=Dnleased to conyict the appellant ,and lsenteneed him accordingly. Being .». aggrieyed by "the _said order of conviction and d*i»sentenoe,vthis appeal has been filed. li6._?.$;i, S.Jayaramaiah is a shadow witness. rofie has stated before the Court that on 20.2.1998 A»§at about 4.15 p.m. the CBI Inspector called him 'n to his office and explained the reason and 'Viwonrpose for securing him and told him that he has to act as an independent witness in a trap case. He introduced the complainant Sri F.Mouli and informed him that the appellant in this case has 7 been demanding illegal gratification and it is intended to lay a trap for the appellant. Thereafter P.W.l was shown the complaint of C.W.i Sri F.Mouii. After being satisfied abonti the, genuineness of the complaint, P.W.1 agreed to act _ * as a shadow witness. Thereafter" an entruetment7 mahazar "was prepared in hie. preaence; ¢The* Inspector asked C.W.1 VSriE_F.Mouli;_toxieroduce l Rs.2,500/-. the intended tribe amount which was subjected to smearing with ehenolphthalein powder to the" currency "notes. The" Inspector gave the tainted_cnrrencyfinotee into his hands and asked him to heap. the zeame in the left side chest s, pocket lof the*.$hixt of C.W.1 Sri F.Mouli and dfi_accordingly;>he kept the tainted currency notes l'e.ft'{,.e.ide chest pocket of the shirt of C.W.3 Sii*?.Mouli. A mahazar was prepared in the di>LCBl office in respect of all these things. It is f.iin'=hie evidence that thereafter at about 5.45 l" .o-e. they left the CBI office and proceeded to .,__._ lithe spot and reached the spot at about 6.20 p.m. It is in his evidence that when they reached the Railway Station, the accused was not in his chamber. Then along with the complainant C.W.1, y..
w. -1» 8 he went to Platform No.4 where the accused was sighted. The Bangalore--New Delhi train was about to be departed from the station at that time. He has stated that when they were at some distance from C.W.1 Sri F.Mouli, they observed the"a¢¢nsed'_ stretching his hand towards C.W.1iwSri,VF;Mouliw»'x asking' whether he has brought _§h¢'&ae¢u§t;,,§£gy? have also seen C.W.1 Sri F.Mouii taking out the 'l tainted currency notes frmhFhis left side shirt pocket through his right hand and giving the same into the right hand of the 5ccu§ed;, ;
7; --ln. the "Chi "Office, himself and the complainant" wereh instructed by Mr.Chacko that immediately "afiter giving money to the accused, athey hahe to give signal by wiping out their face ltwicel~with ithe handkerchief. After the accused received the amount from C.W.l»Mouli, C.W.l gave Th-w "the presarranged signal by' wiping out his face h'.iiWithflf the handkerchief. The complainant*Mouli V'"..__T'wigiped his face with the handkerchief once. The hvaccused after receiving the amount in his right hand was slowly proceeding towards his chamber by holding the currency notes in his right hand 10 Rs.2,5G0/* i.e., 5 currency notes of the denomination of Rs.500/*. When the socks of the left leg of the accused was dieped in the Sodium Carbonate solution, the solution turned into eink colour. The amount of Re.2,500/- was talliefiueitha the number and denominations mentioned Vin 4the"_ "
entrustment mahazar Ext.P2. hfhen V--neceaeary7 formalities of arrest and recovery mahazarvasfiperh Ext.P3 were prepared in] the" effieeihefm the accused.
8;"ThiaTufitneaa haa been thoroughly cross"
examined bY'the:¢§uneel"for the accused and it is suggeste&°_that .heL"iaf telling false before the Couxtcu'En the. eroes~examination, it is further elicited frem this witness that in the mahazar 1Ext{E3; it egg written that he has not heard the convereatien between the accused and Mouli as «hfa there was an announcement in the platform. It is "i also further elicited from P.W.1 that it is not uwclhmentioned in Ext.P3 that the accused after if receipt of the amount from P.W.2, after going some distance, he has kept the same in left side socks. It is also further elicited from this 11 witness in the cross-examination that he has not enquired with the accused about another Rsizfififa found with him. But the Police Inspector ch5c2§:' enquired with the accused about the said amountuu of Rs.200/~. He does not knoe1what5was.the afiswétj given by" the accused to ,the >Police_ inspeetor vi Chacko.
9. P,W,2, Mouli is the Comniainant. He has stated that he knows the,accnsed hetore the Court who was worting ge supervisor in Parcel Section of Bangalore{§&iieay Station. it is further statedf that i?}Q§2iY%$, working as Booking and Clearing *Agent" ind mks 'Green Roadways Transport Company;.Bangaiore since August 1997 and that the accused: is, working as Sapervisor in Parcel Afiection of Bangalore Railway Station since 1997. He has further stated that on 19.2.199é itself he "*v "has gate the penalty of Rs.4,925/- which is u"ieviej as fine by one John Lewis, Chief Clerk for "<{h sending iottery tickets by wrongly mentioning on i7 the said parcel as stationery goods. He has further stated that he has lodged a complaint against the Chief Clerk Ramesh Kumar and not ,.
12 against B.T.Ramesh, the accusedi On this, eoint, the learned Public Prosecutor for CBI requested the Court to treat this witness as hostile and he was treated as hostiie. Thereafter when Wee§ee~ examined, P.W}2 has stated that he has "brought"d the amount to be given to the Chief_C;erkWaameah", "
Kumar. He has admitted thatg he 'aee_<eigaeag the? mahazar in the office of the carton 2Qg2;i99e;dHet»g has further stated that the aaid mahaiar was not read over to him. He has further stated in his evidence that he hag" not; stated» before the Investigating. Officer "or "id" his complaint about the infioivement of if f Ramesh, the accused. He has further= Vdeniedwt the averment regarding s. preparation of Sodium Carbonate Solution in the dxuofficeuoff the EBI on 20.2.1998. It is elicited in the evidefiae of P.W.2 that "it is not true to say _ that" out seeing me; accused B.T.Ramesh demanded 4H"hhgi;legal"gratification by asking me as to whether i. I have brought Rs.2,500f~. It is not true to say 'H*--that I have said to accused B.T.Rameah that I Vihave brought the amount of Rs.2,500/-. It is net true to say that on saying so, accused B.T.Rameah stretched his right hand by saying "Hana Kodi"
Y-"
//T 13 and I paid Rs.2,500/- by taking out from my=énir; pocket."
10. It is thus seen free "thee evidence" of7 P.W.2 that he has given a ci.ea'r_A.go igye». version in the complaint Vaiagainstidi the accused/appellant. ,Qn the' ether hand, Whe has stated that one Ramesh Kamar iada person to whom he owes money} _It "is" suggested 3B?' the learned Public Presecufdi *fQrd,QB$ ithatmihe is depcsing falsely ____ "in dcrder etc 'heifi vthe accused on the assurance .nade.dby'whim_--t0 secure a job in a Transport' Com@an§;edE#w so far as the money tendered concerned, P.W.2 has denied ""5ayifi§?""Tt. is "hat true to say that M.O.1- hHRs,2}5dOZ# «was later recovered from accused .TgRameShffi It is further elicited from the ',cross~eXamination of P.W.2 that he is owing a sum AV~IifofV'ii'"Rs.2,7oo/~ to one Shamshuddin and the said 't'anount of Rs.2,700/- was handed over by him to dx the accused in order to hand over to Shamshuddin. It is further elicited in his evidence that he had informed the Inspector Chacko that he has handed» over the amount to the accused with a 16
18. P.W.18, A.K.Singh is the hand writing expert. He has examined the admitted and disouted handwritings of the accused and has rfiineefafiisffl opinion as per Ext.P193.
19. P.W.19, S.Babu, Station Master; Soothers:
Railways, Bangalore is *,a witnesshAlwho_Vfhas .' translated the Kannada version_ of "the. Cfimplaint into English as per E§t,Pl.iVl"
20. It isv from! the "evidenceh sf all these witnesses «that ithex learnedl Special Judge has found. the_ aoonsed'adfiiltyt and has convicted him and imposed the-sentenoe as stated above. il2lr ml have ---------- ~heard Sri C.V.Nagesh, learned lalSeniorri"Connsel for the appellant and Sri P;Prasanna:Knnar, learned Counsel for the CBI. h 22% Learned senior Counsel for the appellant .u"'.jsezbmitt'ed that in View of p.w.2 turning hostile leldto" the case of the prosecution, the demand and l"=maoceptance of nmmey has not been groved by the prosecution beyond reasonable doubt and this alone is sufficient for acquitting the accused. 17 He further submitted that apart from there being no corroboration to the version of P.W.l, who is a shadow witness, P.W.2 has explalnea* the"
circumstances under which the money "gas -55nae§"* over to the appellant and even if it la heldfbyt the Court that the amount haa teen eoceptéé fife the appellant. that has heen properly tehntteé by"l the evidence of P.W,2 and_hen¢e, a9art_fzoh there being no case under_7the;upfe§isions of the Prevention of. Coztufition agetg "the appellant cannot be oenfiictee; He tgerefere submitted that the appellant ale °entitled for an ofder of acquittaln He baa elao relied upon the following judgeents of this Court as well as the judgments hof the §unfeme Court:
*l=f1t25D4i2) KCCR 1233 ,2 t(D,RAJENDRAN VS. STATE BY POLICE z"INSPECTOR, B.O.I) 'n:,a2;"2oo6(3) KCCR 1445 (STATE OF KARNATAKA VS. K.T.HANUMANTHAIAH)
3. AIR 1991 SC 2085 (S.V.KAMESWAR RAG & ANGTHER VS. THE STATE (A.C.B POLICE) KARNOOL DISTRICT, ANDHRA PRADESH) vt /% 18 Relying on the rulings of this Court as.well as the Apex Court, he submitted that the a§p§iien{V is entitled for an order of acguittalL"=ef~l
23. On behalf of the bA:iZTViE3]:i--,._iA"the"._Arespc:>n-tientk submitted that the aceeptence lei 'meRe§t by lthe' appellant in this lease thee abeen hnreved. by the prosecution beyond teaseneelelethttt It is also not the case not the"ta§pellahtlLthetJ he has not received the eeneyt lt is tte eeee of P.W.2 that the mone§e'ehiehuheee'oeeantw to be paid to Shamshuddin" wag yhaneee _over to B.T.Ramesh, the appellent'hereinZ§n§ the evidence of the witness pointer out" thett the leppellant has received the e.hmonef which was net legal remuneration. Therefore teheiesubmittee* that the burden shifts on the aepellanttfnto rebut the presumption. The lVpresumetion of guilt shifts on the appellant and :fit' is for him to rebut the same. He submitted
-fsthat the said rebuttal has not been carried out rfi"b§ the appellant and hence, the well considered judgment of the trial Court does net require interference in this appeal and therefore, he V /2 19 submitted that the appeal may' be dismissedgiafie has also relied upon the following rulingsclijieji 1.2007 AIR SCW 5589 M.P) (GIRJA PRASAD (DEAD) BY L.Rs.t9Q*$T£¢£_of".,*
2. (2007): supnamz cover CASES kcRL)*52Q t=i"i (STATE REPRESENTED BY INSPECTOR GE POLICE;
PUDUKOTTAI, T.N."Vs,.A.pAnTH:BAN)g*»-.~
3.(2oo7)1 SUPREM comet CASES (cat) 7&1 (B.NOHA vs. STATE or KERALA AND ANOTHER)
4. (201o)1 SUPREME counT'caSE$.(cnL; 147 on (2oe9)11 SUPREME COURE CASES ice (xRIsHnA»RAM:vs,;sInTe,oF'nnJAsTHAN)
5. AIR i9$§~SUPREflE;¢0URT 3?3 :"WiHAZeRI int Vs} Tan SEATE (DELHI ADMW.) Relyine «on VthelmeaidQ"jndgments, learned Counsel for the reepondentesfibhitted that the judgment of l'atheltrial.Court ie sound and proper. nit 24:5 After geing through the evidence on record fiand} also the submissions made en either R"* "side, -1; am of the opinion that in a very x"etringent law like Prevention of Corruption Act, .E=e: tfie very essential ingredient of proef ef an offence of taking bribe under the Act is demand and acceptance of the bribe amount. Though initially P.W.2 has approached the CBI with a K 20 genuine complaint, in the course of his evidence, he has given a compiete go by to the version in:
the complaint.
25. So far as 13.:-1.1 is '».:on;:c..¢.:cne2i., "it". is}-..hiis_:
imagination that when the'appeilentVst§etched§hie«i" hand, the said stretching of hand genie aeount to demand and therefore,' ieheneiflthe Henpeliant stretched his hand, E.W.gi§nt,vh§fl@ohey into the hands of the eyneliant eccotoine to P.W.1. It is a presumption thet Qhfin e hereon stretches hand in the bechgtonfio of demenfl tor money, it would amount _t¢_ dehenoinoV[iiiegai gratification on behalf of: the eatoeiiant. It would have been .,ficoneideted as corroboration only when P.W.2 would '¢2n§ve_ snppotted the case of the prosecution. Gnfortnnetelgfv in this case, P.W.2 gives a comfiieteigo by to the version before the C81 and .u'Jthei cofiolaint and states that he gives a i. different version before the Court. In the iemcircumstances, I am of the opinion that no 'conviction can be based on the untrustworthy version of P.W.2. In that View of the matter, I am of the firm opinion that the corroboration in 21 a case of trap under the Prevention of Corryfition Act is corroboration of the version "oi lihéx complainant. If the complainant does not stano £o5_i* his version, the evidence gof tether?-witneéaes7 cannot replace the complainant o:_his version int a trap case. Further, there is=.aAtéiaerepancy V regarding the notes found in the right side socks of the appellant ana it ia not the case of the prosecution that ;£h§*§ggia;_amo§fit is either belonging,to*thehappallantroreotherwise. Zh. ihé; learnaa* Special Judge has already acquitted"the,an@eliant on the charge regarding acceptance of money.fkom regular customers of the 'i*.RailQay$. in View "of all the witnesses in this i5 connection 'turning hostile to the case of the prosecution-' i?;' After re~appreciation of the entire ievidence on record, I am of the opinion that it R"--; would not be safe to rely on the evidence of V" P.W.2 to hold that the appellant is guilty of the offence. In the circumstances, I hold that the prosecution has not proved the case beyond