Karnataka High Court
Holebasayya Irayya Oni vs The State Of Karnataka on 11 September, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.1088/2010
BETWEEN:
HOLEBASAYYA IRAYYA ONI,
AGE : 47 YEARS,
OCC : SECOND DIVISIONAL ASSISTANT,
K.S.F.C BAGALKOT, R/O.KUNDARAGI,
TQ : BILAGI, DIST : BAGALKOT.
... APPELLANT
(BY SRI.V.M.SHEELAVANT, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY ITS POLICE INSPECTOR,
KARNATAKA LOKAYUKTA, BAGALKOT
... RESPONDENT
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO ALLOW THE APPEAL AND SET ASIDE
THE JUDGEMENT OF CONVICTION AND SENTENCE DATED
01.10.2010 PASSED BY THE SPECIAL (SESSIONS) JUDGE,
BAGALKOT IN SPECIAL CASE No.33/2009 AND SET THE
ACCUSED/APPELLANT AT LIBERTY IN THE INTEREST OF
JUSTICE.
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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This is the appeal preferred by the appellant/accused being aggrieved by the judgment and order of conviction dated 01.10.2010 passed by the Special Judge at Bagalkot in Special Case No.33/2009. The appellant/accused herein has been convicted by the learned Special Judge for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
2. Brief facts of the prosecution case as per complaint averments (Ex.P-1) that, complainant is one Jayakirti Kallappa Ugar in his complaint he has mentioned that, in the year-2000 he has borrowed loan from K.S.F.C., Bagalkot for the purpose of purchasing the Mahindra Wiser vehicle and he was having the loan account at No.05/1886 as he has not paid the loan amount, he was the defaulter, he received one notice on 31.07.2007 from the K.S.F.C, wherein it is stated that, the small and micro borrowers were getting the "one time settlement facility" and in that :3: connection on 27.09.2007 paid the amount of Rs.72,465/- in connection with his loan account No.05/1886. Thereafterwards he met with the appellant/accused - Holebasayya Oni in connection with issuing the 'No Due Certificate' as he was the Recovery Officer, at that time the accused demanded Rs.5,000/- bribe amount, the complainant stated to him that, he is not having that much money, after one week again met with the accused and again requested for issuance of the 'No Due Certificate', at that time accused told that, in case if he paid Rs.5,000/- bribe amount then only it is possible to get such 'No due certificate', the complainant told before the accused that, his financial position is not good. Accused asked the complainant to pay amount of Rs.4,500/- within one week, as the complainant not willing to get his work done by paying the bribe amount, thereafterwards number of times accused person phoned to complainant to bring the bribe amount and even on 13.02.2008 also he phoned to the complainant and asked him to pay bribe amount on 14.02.2008. He has mentioned even the bribe amount is :4: given to the accused, he will accept it, hence action may be taken against accused who demanded bribe amount from him. He will produce the intended bribe amount of Rs.4,500/- whenever it is asked, then complaint was lodged on 14.02.2008 before the Lokayukta Police. On the basis of the complaint case came to be registered for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, thereafterwards after completion of investigation the Investigating Officer has filed the charge sheet against the accused for the said offences.
3. The Court after hearing both sides framed the charge as against appellant/accused for the said offences, as the appellant/accused denied the charges, claims to be tried, the matter posted for trial.
4. The prosecution in support of its case in all examined 14 witnesses as PW-1 to PW-14 and got marked the documents Ex.P-1 to Ex.P-39, so also got marked the material objects MO.1 to MO.10, on the side of the defence :5: no witnesses were examined, but document Ex.D-1, 2, 3 and 4 got marked during the course of cross-examination of prosecution witnesses. Then accused was examined under Section 313 of Cr.P.C. and his statement was recorded, then after hearing arguments of both sides the learned Special Judge hold that, prosecution proved its case beyond all reasonable doubts and convicted the appellant/accused for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
5. Being aggrieved by the same and also challenging legality and correctness of judgment and order of the learned Special Judge the appellant/accused is before this Court with this appeal on the grounds as mentioned at ground Nos.6 to 21 of the appeal memorandum.
6. Heard the arguments of the learned counsel appearing for the appellant/accused and also the learned :6: Special Public Prosecutor appearing for the respondent- Lokayukta.
7. Learned counsel appearing for the appellant/accused during the course of his argument made submission that, there is no independent witness on the side of the prosecution to show that, the appellant/accused demanded bribe amount of Rs.5,000/- which was later reduced to Rs.4,500/- prior to 14.02.2008. The learned counsel made submission referring to the document Ex.P-2 application, there is no time mentioned at what time said application filed on 14.02.2008. The learned counsel submitted that, as per the prosecution material and evidence of prosecution witnesses, it is mentioned that, the loan recovery papers said to have been recovered from the accused. But the learned counsel submitted that, there is also material placed by the prosecution that, the Manager of the said Corporation produced the file requesting the Court that, the original papers are required and hence by keeping the Xerox papers and original :7: returned back to him, in this connection learned counsel made submission that, even looking to the prosecution material there is no consistency in the evidence of the prosecution regarding the recovery of the loan papers as contended by the prosecution. Counsel further made submission that, sofar as the demand of the bribe amount is concerned, there is no acceptable and worth believable material. It is also his submission that, even the evidence of the shadow witness is not worth believable regarding the alleged demand made by the accused person. Hence he submitted that, prosecution has not at all proved factum of the payment of bribe amount from the complainant and this aspect completely overlooked by the learned Special Judge.
8. So far as the sanction to prosecute the accused is concerned, learned counsel made submission that, there is no application of mind by the sanctioning authority, it is also submission that, the person who issued the sanction order is not at all the competent person to issue such :8: sanction. Hence he submitted that, there is no authorization by the board to PW-9 to issue the sanction order. Learned counsel submitted that, in the absence of the such authorization of the board PW-9 was not having authority to issue the sanction order. Hence he contended that, the sanction was not in accordance with Section 19 of the Prevention of Corruption Act, this is also completely over looked by the learned Special Judge. Learned counsel referring to Ex.P-28, it is only resolution for according sanction and that by itself is not the sanction order. Hence it is his contention that, there is no sanction order placed by the prosecution which is said to have been issued complying the mandatory requirements of Section 19 of Prevention of Corruption Act. It is also his contention, though the accused demanded and accepted the bribe amount at the time, they were moving in the vehicle, but the Investigating Officer recorded the statement of some of the passengers and who have been examined before the Special Court, they have not supported the prosecution case and they turned hostile. He also made submission :9: that, even looking to the cross-examination by the learned Special Public Prosecutor nothing has been elicited from their mouth to believe the story of the prosecution that, the accused person demanded and accepted the bribe amount in a moving vehicle. Learned counsel further made submission that, looking to the prosecution story firstly the complainant and the shadow-witness went to the office of the accused, there accused demanded the amount and he took the complainant and shadow witness to the hotel and even in the hotel also when complainant wanted to give the amount, accused told that, not to pay at that place and they can go to the house. Hence referring to these material learned counsel submitted that, materials goes to show the prosecution chased the accused person and ultimately forcibly thrusted the money into the pocket of the accused. Hence submitted, even the story of the prosecution that, complainant and the shadow-witness went to the office as well as to the hotel and then they have paid the money in the moving vehicle is not worth believable and acceptable. Hence the learned counsel : 10 : submitted that, false case booked against him, there is no worth believable material placed by the prosecution. Hence he submitted that, the learned Special Judge not at all considered all these material aspects both on law and facts, read the evidence wrongly and he has also proceeded wrongly to convict the accused person. Hence, the learned counsel submitted to allow the appeal and set aside the judgment and order of conviction passed by the learned Special Judge and acquit the accused person for the said charges. In support of his contention the learned counsel for the appellant/accused relied upon five decisions filed with list of citation.
(i) Order in Criminal Petition No.899/2017 in the case of Dr.H.C.Sathyan, Vs. The State of Karnataka.
(ii) LAWS (SC) 1989 12 21 in the case of Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe vs. State of Maharastra
(iii) 1998 (1) G.L.H 248 in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat.: 11 :
(iv) LAWS (Karnataka) 2015 11 252 in the case of B.S.Yeddyurappa Vs. The Principal Secretary to his Excellency the Governor Karnataka and others.
(v) LAWS(SC) 2015 7 57 in the case of Nanjappa Vs. State of Karnataka.
9. Per Contra, the learned Special Public Prosecutor representing the respondent-Lokayukta, during the course of his arguments made submission that, regarding the demand of the bribe amount is concerned complainant made it very clear in the complaint that, number of times earlier to 14.02.2008 when he met with the accused person, he demanded the bribe amount and even on 14.02.2008 also when he approached the accused person in connection with 'no due certificate' at that time also he insisted for payment of the bribe amount of Rs.5,000/- which was later reduced to Rs.4,500/-. Learned Special Public Prosecutor made submission that, when the complainant filed complaint before the Lokayukta Police, Lokayukta police called two panchas and introduced the complainant to the pancha-witnesses and at that time : 12 : also the FIR copy was given to the pancha-witnesses stating that, complainant made the allegation that, the accused person demanded bribe amount. He also made the submission that, entrustment mahazar were conducted as per Ex.P.19 and thereafterwards the complainant was instructed that, he has to go to the office of the accused person enquire about his work and in case accused demanded the bribe amount then he has to give the tainted currency notes smeared with the phenolphthalein powder to the accused person, pancha No.1-Pawar he has to accompany the complainant to the office of the accused and he has to observe what is happening in between complainant and accused person. Learned Special Public Prosecutor made submission that, the trap was conducted in the vehicle, after they boarded the vehicle and when vehicle was near by the Government Hospital accused demanded the amount from the complainant. Accordingly, the complainant gave the bribe amount to the accused person, the shadow-witness PW-2 Pawar was standing at the distance of two feet from the complainant and after the : 13 : accused received the bribe amount complainant gave the pre-arranged signal by wiping the face with the hand kerchief. Immediately the Police Inspector and other Police staff caught hold the appellant/accused and then he was brought to the office wherein the trap mahazar proceedings were conducted. The learned Special Public Prosecutor submitted that, firstly the hand wash of the accused was taken in sodium carbonate solution in two separate bowls and solution turned into the pink colour. He also made submission that, thereafterwards when the accused asked to produce the bribe amount, he took out it from his shirt pocket and produced before the Lokayukta Police. In this connection he submitted that, even by providing alternative shirt the shirt of the accused also seized, inner portion of the pocket of the said shirt also washed in sodium carbonate solution, it also turned into pink colour.
10. Learned Special Public Prosecutor further made submission that, when asked the accused to offer his : 14 : explanation about the bribe amount he gave his explanation as per Ex.P-4. Learned Special Public Prosecutor made submission that, prima-facie it goes to show false explanation has been given by the accused. He made submission that, amount was thrusted into his pocket two times, firstly by the complainant, secondly by the Lokayukta Police. Hence referring to this the learned Special Public Prosecutor made the submission that, this itself goes to show such a false explanation has been offered by the accused person. So far as Ex.P-2 is concerned, the learned Special Public Prosecutor made the submission that, though it is addressed to the Manager of the KSFC, but looking to the contents of the said document Ex.P-2 he requested that the "no due certificate' has to be issued to him through the appellant/accused. Hence he made the submission that, the complainant made it clear that, it was appellant/accused who is Recovery Officer who used to come to him and hence he approached the appellant/accused in connection with issue of 'no due certificate'. So far as sanction and its validity is concerned, : 15 : the learned Special Public Prosecutor made submission that, looking to the evidence of the prosecution witnesses before the Special Court, when the document sanction which was tendered in evidence, the other side have not raised any objection to the document and marked the document. Therefore he made submission that, even the provision of Section 19 of the Prevention of Corruption Act, is also very clear that, its validity cannot be challenged at the subsequent stage. It is also his contention that, it is a valid sanction order issued by the competent authority, he lastly made the submission that, the learned Special Judge taken into consideration all these aspects of the matter properly appreciated and he has rightly comes to the conclusion that, there is a demand and acceptance of the bribe amount by the accused person, both offences are established with satisfactory material and the Special Judge rightly convicted the appellant/accused. Hence it is his contention that, there is no illegality in the judgment and order of conviction by the learned Special Judge, there : 16 : is no merit in the appeal and accordingly same is to be rejected.
11. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction, so also the sentence imposed by the trial Court as against the appellant/accused, oral evidence of PW-1 to PW-12 and the documents Ex.P-1 to Ex.P-39, so also the documents Ex.D-1 to Ex.D-4. In order to establish the case the prosecution has to prove its case regarding the demand and acceptance of the bribe amount by the appellant/accused. So far as demand of the bribe amount is concerned let me refer to the oral evidence of the parties adduced before the Special Judge Court. PW-1 is the complainant and looking to his examination-in-chief, he has deposed about the contents of the complaint and he making the payment of loan amount of Rs.72,465/- and the demand made by the accused person of Rs.5,000/- when he approached the appellant/accused for issue of 'no due certificate' in respect of his loan account. He has also : 17 : deposed when he told before the accused person that, it is not possible to pay that much amount same was reduced to Rs.4,500/- and he was asked to bring the said amount within one week. On page No.2 of his deposition, he also deposed regarding the phone calls made by the appellant/accused to bring the bribe amount on 14.02.2008 and he was not interested to pay the bribe amount to get his work done and went to Lokayukta Office. He also deposed that, on 14.02.2008 morning at 10.00 a.m. he went to the Lokayukta Office and narrated about all these things and as the Lokayukta Inspector instructed him to give in writing, he gave the complaint, which was as per Ex.P-1. He also further deposed that, half an hour thereafter he lodged the complaint, called the panch-witnesses to the office of the Lokayukta and he has also deposed in detail, in the entrustment mahazar the complainant produced the 9 currency notes each of denomination of the Rs.500/-, the smearing of the phenolphthalein powder to all those notes and the panch witness-Pawar keeping those notes that, they smeared : 18 : with phenolphthalein powder and kept into the shirt pocket of the complainant and he has also deposed in his evidence that, himself and the panch No.1 went to KSFC Office and the accused was sitting near by the table, the complainant met with the accused the pancha-witness was at little distance and at that time the accused told that, he has to pay amount of Rs.2,500/- to the Bank in connection with the legal fee and asked him to meet the Manager of the KSFC. He further deposed that, he met the Manager and told that, Rs.2,500/- is on the higher side and he made the request, then he was told to pay Rs.2,000/- and accordingly in the said office cash counter he made the payment of Rs.2,000/-. The PW-1 evidence also goes to show, after making the payment of Rs.2,000/- again complainant went to accused and informed that, he has already paid the amount, at that time the accused asked him whether he has brought the bribe amount, the complainant told that, he has brought Rs.4,500/-, he wanted to give that amount the accused told not to pay at the said place and brought the complainant out side of the : 19 : office, then complainant and the accused went to the 'Hotel Ananad Sagar' which is near by the RTO Office and pancha-Pawar was also following them, they had the 'tea' in the said Hotel, accused asked complainant to pay the amount, when the complainant wanted to pay the amount again the accused told not at the said place and asked him to go to his house. They all come out of the said Hotel there was one passenger Tempo to be proceeded towards Gaddanakeri Cross, accused boarded the said vehicle, the complainant and pancha-Pawar also boarded the same. Then the Police Inspector and the staff also boarded the said Tempo, accused sat on the back seat window side, complainant sat by his side and infront of the pancha- Pawar was standing. When the vehicle was proceeding near by the Government Hospital the accused demanded amount from the complainant, then the complainant took out the amount and gave it to the accused, the accused counted the amount from both hands, then he kept the amount in his shirt pocket, immediately he gave the pre- arranged signal by wiping his face with his hand kerchief, : 20 : then Police Inspector immediately came and asked what has happened in between them and the complainant narrated the accused receiving the bribe amount, so also the pancha-Pawar also told accused received the bribe amount. When the accused received the bribe amount, it was 2.45 p.m. Then the Inspector secured his vehicle, then they all came back to the KSFC Office. He also spoken about the trap mahazar after taking the hand wash of the accused in both the separate bowls and solution turning into pink colour. He also spoken that thereafter words when the Police Inspector asked the accused person to produce the bribe amount, he took out the bribe amount from his shirt pocket and produced before the Lokayukta Police, when they compared the numbers of the said notes they are the very notes which were mentioned in the entrustment mahazar in the Lokayukta office.
12. During the course of cross-examination this PW-1 deposed that, he has admitted about the location of the office of the KSFC and gates which was suggested to : 21 : him and the staff members were also sitting at the said place. He has also admitted that, infront of the third cabin and behind that also there are four tables and out of the four tables in the hind portion there is a table wherein the appellant/accused was sitting and nearby the four tables staff were also working. He also admitted that, because of non payment of installment he became the defaulter. But he denied the suggestion that, accused came in connection with seizure of his vehicle, as he has committed the default, but the complainant told some other person came for the attachment of the said vehicle, but he does not know the name of the said person. He admitted that, his vehicle auctioned for Rs.1,20,000/-, so also he admitted that, as per the order of the Deputy Commissioner the remaining loan amount is to be recovered as a Land Revenue. He admitted the suggestion that, the accused person working as a clerk, he also admitted the two properties that he has offered as a security for his loan, they were attached and sold. He denied the suggestion that, accused came to his house and asked about his : 22 : property and also to give the property extracts, but he admitted in connection with recovery of the loan amount, the accused used to come to him. He denied the suggestion in that connection that, CTS No.5122/B/1, the accused came and met with him. On 14.02.2008 when he went to KSFC to pay Rs.2,500/- it was 2.00 p.m. the accused has been requested to reduce the amount, but he does not know person who received it, whether signed or not the said application is Ex.P-2. He admitted there is no signature on the application by the accused, so also he admitted that, with regard to the payment of loan amount to the KSFC there is a mention at para No.113 of Ex.P-2 and there is no signature of the accused. He has admitted that, there is no signature of the accused person, even on the challan at page No.119 for the payment of Rs.2,000/- towards the legal fee. He was also cross-examined with regard to the bottles securing the solution at the time of entrustment mahazar also the trap mahazar when it was marked whether two numbers were given as "1 and 1A" to only one bottle there were two bottles, they were marked : 23 : together, also deposed that, he cannot say in the entrustment mahazar what are the identification of the marks to each of the bottles, but he does not know number of bottle was given 1 and 1A similarly, he was asked about the hand wash of the accused person is concerned, when it was secured in the bottle, whether on the chits/slips pasted on the said bottles is it mentioned as 5 and 5A, he said "yes". When it was again asked when one bottle was shown there is mention of "5" and there is no of "5A", the witness answered there are two bottles and he also stated that, which is shown to him there is no mention of "5A" and the rest of the cross-examination it was suggested to him about the omissions. About those omissions, witness admitted it may be so. He further deposed on page 16 of his deposition that, in the month of January-2007 as the accused was knowing to him. He again went to accused in the month of January and asked him about 3-4 persons used to come to him but it is the appellant/accused who was often time coming to him. He further deposed one week earlier to lodging the complaint, : 24 : the accused demanded the bribe amount from him. But he has not informed about the amount to his higher officer as he was not knowing about the same. He further deposed that, during that week till he lodging the complaint before the Lokayukta Police, it was not inclined to him that, he has to approach the higher officer of the accused. He denied the suggestion that, as the accused person collected the information about his properties and submitted to the office he has felt bad in that regard, he denied the suggestion that, accused not demanded the bribe amount from him. When they went to the hotel it was 2.00 p.m. within 10 minutes they left the hotel and when they were moving into the tempo it was 2.30 p.m. same questions were asked about the said vehicle and the persons who were present in the said vehicle also, when it was suggested that, accused not at all demanded Rs.5,000/- for issue of the 'no due certificate' and for that, he told Rs.4,500/- and this also he is deposing falsely and witness denied the suggestion. He denied the further suggestion that, accused never informed him to bring the : 25 : amount on 14.02.2008. He denied the suggestion that, no other panchas were secured to the Lokayukta Police, no entrustment mahazar were conducted, there is no smearing of the phenolphthalein powder to the notes, no sodium carbonate solution was prepared, the hand wash of the panch witness-Kulkarni were not at all taken in the said solution material object M.O.1 to 4 not at all seized, the notes not at all kept in his pocket, all these suggestions were denied by the witnesses. He has not at all gone to the Lokayukta office and not at all paid Rs.2,000/- to the Bank, nor told him to meet Manager and not at all met with the Manager and after paying the said amount the accused demanded the bribe amount, all these things he is telling falsely, the said suggestion also denied by the witness. He denied that, they have not at all gone to the Anand Sagar Hotel, panch witness-Pawar not at all came there, accused never demanded the bribe amount to pay at that place, he has not at all tried to pay the amount and accused has not at all told not to pay at the said place, all these things he deposing falsely, even suggestions : 26 : regarding the accused demanded the amount when they were proceeding in the vehicle and the complainant paying amount to the accused person, after issuing the amount he has given the pre-arranged signal, even that no such things were happened in the moving vehicle all these suggestions denied by PW-1.
13. Now coming to the oral evidence of PW-2 panch-witness in the examination-in-chief, he deposed that, on 14.02.2008 at about 11-30 a.m. he went to the Lokayukta Office at Bagalkot, complainant was present there, so also Prahlad Kulkarni was present, complainant also told that, the accused person demanded Rs.5,000/- and he has agreed to pay Rs.4,500/-. This witness also deposed in detail in the entrustment mahazar conducted in the Lokayukta office and about the chemical examination of the sodium carbonate solution. He further deposed that, thereafterwards they all went in the police jeep and Lokayukta police informed the complainant to go to the office of the accused person and he was instructed to : 27 : follow the complainant and observe what is happening in the said office. Accordingly, the complainant after going to the office of accused met to the accused-Oni, he was at the distance of 4-5 feet, the complainant talked with the accused person and he also went and met with the Manager also thereafterwards complainant and the accused person came out of the office, himself complainant and the accused person went to the Anand Sagar Hotel, had the tea. Witness deposed that, the accused person talked about the payment of the amount in the hotel, then he told not to pay the amount in the hotel also and after coming out to board tempo which was proceeded towards Gaddanakeri Cross and accused, complainant boarded firstly in the tempo. Thereafterwards Inspector, Police Constables they all boarded the said vehicle, the complainant and the accused were sitting in the back seat, he was at the distance of two feet in the said tempo. When the tempo came nearby the Government Hospital, Navanagar, Bagalkot. The accused demanded the bribe amount from the complainant, the complainant gave the : 28 : amount after receiving the amount into his said pocket, immediately the complainant taking out the hand kerchief and wiped his face, then immediately Inspector and the Constables caught hold the accused-Oni, the tempo was stopped, then they all came to the office. He deposed in detail about the hand wash of the accused, particularly in both the bowls and the said solution turning into pink colour, securing the same in the separate bottles, bottles were sealed. Thereafterwards the accused was asked to produce the bribe amount and he has produced those notes when they were verified, they were very notes to which the phenolphthalein powder was smeared and even the numbers which were noted in the Lokayukta Office they are the very notes. Then the accused was asked to remove his shirt and the inner portion of the said shirt washed in the sodium solution, it also turns into the pink colour. When Inspector asked accused to produce the document, he produced the document pertaining to the complainant. He deposed about the drawing of the trap mahazar and he signing the trap mahazar, he has also : 29 : identified the photographs Ex.P-5 to 18. Further deposed that, he was enquired by Lokayukta Police in detail, statement was recorded by the Lokayukta Inspector. He further deposed that, the sample seal which was having the marked "W.T" it was given into his possession with instruction to produce the same and he has brought the said seal before the Court and he has produced the same, which was marked as M.O-10. During the course of cross- examination, firstly the questions were asked about the bottles which is containing sodium carbonate solution, when he was asked about the entrustment mahazar, he answered what has took place, same has been written in the entrustment mahazar. He has also asked about the bottles containing the solution at No.1 and 1A for which he answered that the meaning is that in respect of bottle No.1 was given and in respect of another A1 was given. He has also answered that they are two bottles, when portion of his statement dated 15.02.2008 was read over to him and it was containing the details when the solution turned into the pink colour. It was taken in two bottles and it was : 30 : sealed by using the sample seal 'W.T'. Then it was sealed with the wax, mentioned article 1, 1A, when he asked whether he has stated so the witness answered it was in two bottles and he also deposed for one bottle, it is given as No.1 another one 1A. When he was asked about the phenolphthalein powder sample the pocket, it was taken whether the No.2 and 2A were assigned for that, he answered no, there are two separate numbers assigned to them. It is also referring Ex.P-19 panchanama, when he was asked two numbers were assigned 2 and 2A, he answered 'no' separate numbers 2 and 2A were assigned. He also asked other question with regards to 3 and 3A, 5 and 5A, 6 and 6A, the witness answered that they are separately given such numbers. When he was asked so far as the wash of the pocket of shirt of the accused, when the solution was secured in the bottle, whether he has stated that, the said solution was secured in the two bottles as number 8 and 8A for that he said 'no'. He denied the suggestion that, the MO-1 to MO-9 which were mentioned in Ex.P-19, 20 were not at all seized in the said date and : 31 : place. Witness denied the said suggestion, when he was asked on the date of 14, all this has happened next day whether he has called by the police, he has stated 'Yes'. His statement was taken and his signature were also taken. And when he was asked how many signatures were taken by the police, witness herein remained silent and again the same question was asked, for that answered statement only was taken. Next question how many statements for that also, he answered his statement was taken that's all.
14. Looking to the remaining portion of his cross- examination, it was suggested to the said witness that, no entrustment mahazar was taken place, he had been to the Lokayukta office at 11.30 p.m., he was not instructed to come along with complainant and no such entrustment panchanama was drawn, even it was suggested, he is deposing falsely himself and complainant went to the office of Lokayukta, then complainant went to the Manager : 32 : talked with him, then he came back and thereafter complainant himself and the accused went to the hotel.
15. Then the complainant went to the Manager talked with him and came back and there-afterwards the complainant himself and the accused went to the hotel. The accused told the complainant not to give the amount at the said place and they can go to the house; they did not board the tempo; accused never demanded the amount from the complainant; complainant did not give the amount nor gave the pre-arranged signal nor the Inspector and complainant caught hold the petitioner. Though all these suggestions were not denied by him, he denied the further suggestion that the Lokayukta police not at all enquired him as to what happened in between the complainant and the accused. I have also perused the documents Exs.P.19 and 20 - the entrustment mahazar proceedings and also the trap mahazar proceedings. Referring to contents of the complaint in Ex.P.19, there is a mention that the complainant came to the Lokayukta : 33 : Police, gave the complaint mentioning that the accused person demanded the bribe amount from him and as he was not interested, he had come to the Lokayukta Office and lodged the complaint. There is also a mention in Ex.P.19 that when both the panch witnesses came to the Lokayukta Office, they were introduced to the complainant and even copy of the FIR was given to them, they have gone through the FIR copy. The mahazar proceedings goes to show that in the moving vehicle the appellant/accused demanded the bribe amount from the complainant it was paid by the complainant, then he was caught hold and brought to the KSFC office and his hand wash was taken in the solution. Of course, regarding all these things are concerned from the side of the defence, suggestions were made that no such things were taken place. I have already referred to the cross-examination of P.Ws.1 and 2 wherein they have denied the said suggestions and asserted that there was a demand made by the accused in the moving vehicle, then the complainant paid the bribe amount and thereafterwards he was caught hold and his hand wash : 34 : was taken. Sofar as taking of the hand wash in the bowls and the solution turning into pink colour is concerned, prosecution has also relied upon the FSL report which is produced as per Ex.P.21. Looking to these documents Ex.P.21 on page No.3, in the opinion column, it is mentioned by the FSL Office that presence of phenolphthalein powder is detected both in the right and left hand fingers of the AGO. Therefore, even by this chemical process also prosecution is able to establish that when the hand wash of the accused was taken in the solution, it turned into pink colour and the laboratory report regarding presence of the phenolphthalein powder. I have already referred to the contents of Ex.P.1, the entrustment mahazar and there is evidence from the mouth of P.Ws.1 and P.W.2 and also the Lokayukta Inspector regarding smearing of the Phenolphthalein Powder to the said notes produced by the complainant, then keeping such notes into the shirt pocket of the complainant. It is also the material placed after receiving the bribe amount, the accused counted the said amount : 35 : from both his hands, then kept in his shirt pocket. The inner portion of the shirt pocket was also washed in the solution and even with regard to that also, there is mention in Ex.P.21 regarding the shirt pocket the result is positive that is the presence of phenolphthalein powder. It is at article No.9 on page 3. Therefore all these materials coupled with the evidence of P.Ws.1 and 2 and Investigating Officer goes to show that the said amount was recovered from the accused person and sofar as this aspect is concerned, it is not the case of the accused person that he has not at all received any such amount and there is a false implication. His explanation is at Ex.P.4. Referring to the explanation dated 14.02.2008 offered by the accused wherein he has stated that in connection with the payment of loan amount, on 14.02.2008 the complainant asked him to issue no due certificate, he informed the same to the Manager and he also prepared the letter and gave it to the Department and thereafterwards in the cash section Rs.2,000/- was made to pay and he has also sent the said letter for the purpose : 36 : of signature of the Department Manager and when he was going for meals, the borrower followed him and in the tempo he put the amount into his pocket, but he has not touched that amount and, in the meanwhile, the Lokayukta Police came and they also forcibly put the amount into his pocket and they have committed fraud on him. So, if this defence of the accused in Ex.P.4 is taken into consideration, the story of the prosecution that they all traveling in the said tempo is admitted, but the only contention of the accused is that while so traveling the complainant put the amount into his pocket but he has not at all touched it. If his explanation is taken to be true that he has not at all demanded the amount and the amount was kept in his shirt pocket by the complainant forcibly and that he did not touched the said amount, then there was no reason or occasion of the solution turning into pink colour when the hand wash of the accused was taken in the solution. This itself clearly goes to show that he has offered false explanation. On the other hand the evidence, both oral and documentary, also clearly go to show that : 37 : the accused received the said amount and with both his hand counted the same and kept it in the shirt pocket. If all these materials, the oral evidence of P.W.1-complainant and P.W.2-shadow witness, evidence of Investigating Officer, the contents of complaint-Ex.P.1 and contents of Ex.P.19-entrustment mahazar and Ex.P.20-trap mahazar together appreciated with the explanation offered by accused No.1 i.e., Ex.P.4, they all clearly go to show that he has taken a false explanation only in order to escape from the clutches of law. Therefore, sofar as the demand and acceptance of the bribe amount is concerned, it is not only the oral evidence of complainant, P.W.2 and the Investigating Officer, but even it is supported by the documents Exs.P.19 and P.20 to show that there was a demand and acceptance of the bribe amount. When a specific contention has been taken by the defence that it was forcibly put into his shirt pocket and also that a specific contention that he has not at all touched that amount, the entire burden is upon the accused person to show how the solution turned into pink colour when the : 38 : hand wash of the accused person was taken in the said solution and that laboratory report Ex.P.21 issued is a false report.
16. Now with regard to the contention of the learned counsel appearing for the appellant/accused that complainant addressed Ex.P.2 to the Manager of the KSFC, there is no doubt about it, but this Ex.P.2 is in connection with the payment of legal fee of Rs.2,000/- whereas the bribe amount is mentioned in the complaint Ex.P.1, in the entrustment mahazar proceedings - Ex.P.19 and in the oral evidence of both the witnesses. Therefore, even looking to the cross-examination of P.Ws.1 and 2, though it is a lengthy cross-examination, there is nothing elicited from the mouth of these two witnesses so as to disbelieve their version regarding demand and acceptance of the bribe amount. It is no doubt true that in the office as well as in the hotel, the accused not at all received the amount, though he asked about the bribe amount though the complainant was ready the pay the bribe amount, but it is : 39 : ultimately only in the moving vehicle the accused demanded and accepted the bribe amount. Only on the ground that the accused has not received the amount in the office or in the hotel and when there is a positive material placed to the satisfaction of the Court about the demand and acceptance of the bribe amount in a moving vehicle, the other material of the prosecution cannot be rejected. As already observed, in his explanation Ex.P.4, the accused person admitted that everyone were traveling in a moving vehicle that is a tempo. Therefore, it also probablises the case of the prosecution that the incident has taken place when they were traveling in the said tempo. Therefore, the learned Special Judge taking all these aspects into consideration while appreciating the materials and he has also rightly come to the conclusion that the prosecution established its case to the satisfaction of the Court regarding the demand and acceptance of the bribe amount.
: 40 :
17. So far as the sanction is concerned, as it is submitted by the learned Special Public Prosecutor that when it was tendered in evidence before the Trial Court it was accepted without any sort of objection being raised by the accused while marking regarding its admissibility and relevancy and after it was admitted that was relied upon by the Court below. Now, the question is whether its validity can be challenged before this Court. In this connection, I am referring to Section 19 of the prevention of Corruption Act and the relevant provision 19(3)(a) reads as under:
" 19. Previous sanction necessary for prosecution. (1) xxxxxxxxxxx (2) x x x x x x x x x x x (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-
(a) No finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission, irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has, in fact, been occasioned thereby;": 41 :
18. Therefore, with regard to the sanction order it was admitted in evidence by the Special Court. The burden is upon the accused person to establish that prejudice had been caused to him because of such sanction order. In this connection, it is not only the sanction order, but referring to the entire charge sheet material and the evidence adduced before the Court by the prosecution witnesses, the prosecution was able to establish its case of demand and acceptance of the bribe amount.
19. The contents of trap mahazar proceedings- Ex.P.20 also go to show that the accused produced the file relating to the complainant. Of course, it has come in evidence that the Manager of the KSFC submitted that the Lokayukta Police requested to furnish some documents and as requested by them, he took a photo copies of the original documents sought for and furnished the same. The file which was seized under the trap mahazar proceedings, the documents in the said file were from page Nos.41 to 123 and even looking to the said pages. The receipt, the : 42 : challan copy for the payment of Rs.2,000/- towards legal fee. So also in the said file this fact itself go to show that the complainant, after making payment of Rs.2,000/- towards legal fee has also handed over a copy of the challan to the accused person. Therefore, even these materials are consistent with the case of the complainant. It is no doubt true that as submitted by the learned counsel appearing for the appellant/accused that the time regarding the application-Ex.P.2, there is no mention. But the materials produced during the course of trial goes to show that on the very day, the complainant approached the Manager of the KSFC, as referred to by the accused, and he made payment of Rs.2,000/- and the copy of the challan he produced before the accused also. Therefore, that contention is also established by the prosecution with the help of the documentary evidence. Considering these aspects of the matter and referring to the judgment and order of conviction and the reasons adopted by the learned Special Judge in the judgment holding that the prosecution established it case with the help of acceptable material. : 43 : This observation is in accordance with the materials placed on record. There may be minor discrepancies here and there which are bound to be there in any proceedings. But those minor discrepancies will not go to the very root of the matter so as to disbelieve the case of the prosecution. Therefore, looking to the judgment and order of conviction passed by the Special Judge, I do not find any illegality in the said judgment nor any perverse or capricious view has been taken in coming to such conclusion. Hence, there are no valid and justifiable grounds for this Court to interfere with the impugned judgment and order of conviction passed by the Trial Court. There is no merit in this appeal and the same is accordingly dismissed.
Sd/-
JUDGE Ckk/Kms