Karnataka High Court
Sri. Irayya Mallayya Kambi, vs The State Of Karnataka, on 5 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 5TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.2846/2010
C/W
CRIMINAL APPEAL NO.2631/2011
CRIMINAL APPEAL NO.2632/2011
IN CRIMINAL APPEAL NO.2846/2010
BETWEEN:
SRI. IRAYYA MALLAYYA KAMBI,
FDA, TAHSILDAR OFFICE, ATHANI,
DIST. BELGAUM.
...APPELLANT
(BY SRI SRINAND A PACHHAPURE, ADV.)
AND
THE STATE OF KARNATAKA,
BY LOKAYUKTA POLICE STATION,
BELGAUM. NOW REP. BY HCGP.
...RESPONDENT
(BY SMT.NIRMALA S SUTAGATTIMATH, SPL.PP.)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
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21.10.2010 PASSED BY THE IV ADDL. DISTRICT JUDGE &
SPECIAL JUDGE, BELGAUM IN SPECIAL CASE
NO.78/2006, FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 7,13(1)(d) R/W SECTION 13(2) OF PREVENTION
OF CORRUPTION ACT, 1988, AND ACQUIT THE
APPELLANT.
IN CRIMINAL APPEAL NO.2631/2011
BETWEEN:
SURESH S/O MALLAPPA TOLAGI
AGE: 42 YEARS, OCC: SERVICE,
R/O VISHVESHWARAYYA NAGAR
BELGAUM.
...APPELLANT
(BY SRI SRINIVAS B.NAIK, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH LOKAYUKTA POLICE,
BELGAUM.
...RESPONDENT
(BY SRI PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC.341 OF
CR.P.C. SEEKING TO SET ASIDE THE PROCEEDINGS IN
C.C.NO.90/2010 ON THE FILE OF THE CHIEF JUDICIAL
MAGISTRATE, BELGAUM, AND THE ORDER DATED
22.02.2011 PASSED BY THE IV ADDL. DIST. AND
SESSIONS JUDGE, BELGAUM, IN SPL. CASE NO.78/2006.
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IN CRIMINAL APPEAL NO.2632/2011
BETWEEN:
ANIL S/O SHIVAJI KALADAGI
AGE: 33 YEARS, OCC: SERVICE,
R/O SHIVAJI NAGAR, BELGAUM.
...APPELLANT
(BY SRI SRINIVAS B.NAIK, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH LOKAYUKTA POLICE,
BELGAUM.
...RESPONDENT
(BY SRI PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC.341 OF
CR.P.C. SEEKING TO SET ASIDE THE PROCEEDINGS IN
C.C.NO.90/2010 ON THE FILE OF THE CHIEF JUDICIAL
MAGISTRATE, BELGAUM, AND THE ORDER DATED
22.02.2011 PASSED BY THE IV ADDL. DIST. AND
SESSIONS JUDGE, BELGAUM, IN SPL. CASE NO.78/2006.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Since these three appeals are arising out of the same judgment, they were taken together to dispose of them by this common judgment in order to avoid repetition of discussion on the point of law and facts involved in the case.
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2. Crl.A.2846/2010 is preferred by the appellant/accused being aggrieved by the judgment and order of conviction and also the sentence dated 21.10.2010 passed by the IV Addl. District and Sessions Judge, Belgaum, in Special Case No.78/2006.
3. Crl.A.2631/2011 is preferred by the witness i.e., P.W.2 in Spl.Case No.78/2006, being aggrieved by the initiation of the criminal proceedings and issuance of summons by the learned Chief Judicial Magistrate, Belgaum, in C.C.No.90/2010 for the offence punishable under Section 193 of IPC.
4. Crl.A.2632/2011 is preferred by another witness i.e., P.W.3 in Spl.Case No.78/2006, being aggrieved by the initiation of the criminal proceedings and issuance of summons by the learned Chief Judicial Magistrate, Belgaum, in C.C.No.90/2010 for the offence punishable under Section 193 of IPC.
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5. The appellants i.e., the accused and P.Ws.2 and 3 in Spl.Case No.78/2006, have challenged the legality and correctness of the judgment and order passed by the trial Court on the grounds as mentioned in the respective appeal memorandums.
6. Brief facts of the prosecution case as per the complaint averments are that P.W.1-Mutteppa Mahaning Sanadi lodged the complaint before the Lokayukta Police making the averments that he was possessing the land bearing Sy.No.29 in Agrani Ingalgaon village of Athani Taluk and the said land was an Inam land. The complainant filed an application to the Tahasildar, Athani, on 30.05.2006 requesting for change of the tenure of the land in respect of deletion of the condition of the inam land and to convert the land into raitapi. The accused is working as First Division Assistant (F.D.A.) in Tahasildar Office, Athani and he was dealing in that regard. On 16.06.2006 when the :6: complainant met accused and enquired about his application, at that time, accused being the case worker, demanded bribe of Rs.7,000/- from the complainant for converting the land into raitapi and on bargaining, got it settled at Rs.5,000/-. Complainant has assured to pay this amount within one week and subsequently he lodged the complaint before Lokayukta Police. On the basis of the said complaint, Lokayukta Police Inspector has followed all the procedure and entrustment mahazar was also conducted in the Lokayukta Office, explaining about the proceedings and thereafter, they have arranged for the trap on 19.06.2006. On 19.06.2006 at about 1.30p.m., in the Tahasildar Office in Athani, accused being a Public Servant working as a F.D.A., demanded and accepted bribe amount of Rs.5,000/- from the complainant and the notes were comprising of 9 notes of Rs.500/- denomination each and 5 notes denomination of Rs.100/- each. This was the gratification received by :7: the appellant/accused and other than legal remuneration as a motive or reward for doing an official favour for changing the tenure of the land bearing Sy.No.29 from inam land into raitapi land and thereby the accused obtained a pecuniary advantage to the tune of Rs.5,000/- and thereby committed the criminal misconduct. Immediately a trap was laid down and accused was apprehended when he has accepted the bribe and after following all the procedure of taking the hand wash and recovery, etc., the Investigating Officer carried out the further investigation and after obtaining the sanction, he has submitted that the charge sheet against the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
7. After hearing both sides and considering the charge sheet material, the learned Special judge framed the charge under Section 7, 13(1)(d) read with Section :8: 13(2) of Prevention of Corruption Act, against the accused, who was the appellant in Crl.A.2846/2010, and then as the accused pleaded not guilty and claimed to be tried, the matter was posted for trial of the case.
8. The prosecution, in support of its case, in all examined seven witnesses as P.Ws.1 to 7 and produced the documents Ex.P-1 to P-18, so also, the material objects M.Os.1 to 9 and on the side of the defence, no witnesses were examined nor any documents were got marked.
9. After hearing the arguments and after considering the materials placed on record both oral and documentary, the learned Special Judge came to the conclusion that the prosecution proved its case beyond all reasonable doubt as against the accused, who is the appellant in Crl.A.2846/2010, and convicted him for the said offences.
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10. Sofar as the appellants in Crl.A.2631/2011 and 2632/2011, who are P.Ws.2 and 3 respectively in Spl.Case 78/2006, are concerned, learned Special Judge has observed that they have given false evidence before the Court and thereby committed the offence of perjury under Section 193 of IPC, ordered in its judgment giving a direction to the Chief Administrative Officer of the said Court to lodge a complaint against P.Ws.1 to 3 along with the copy of the said judgment and deposition of P.Ws.1 to 3 before the Chief Judicial Magistrate, Belgaum, for the offence of perjury for giving false evidence before the Court.
11. Therefore, being aggrieved by the judgment and order of conviction passed against the accused, so also, being aggrieved by the direction issued by the learned Special Judge for initiating criminal case as against the appellants, who are P.Ws.2 and 3 in Spl.Case No.78/2006, all the three are before this Court : 10 : in the above three appeals on the grounds as mentioned in the respective appeal memorandums challenging the legality and correctness of the judgment of the trial Court.
12. Heard the arguments of the learned counsel appearing for the appellants in all the three appeals and also the learned HCGP appearing for the respondent- State.
13. Learned counsel for the appellant/accused in Crl.A.2846/2010 during the course of his arguments has submitted that the learned Special judge has wrongly held that the prosecution proved its case beyond all reasonable doubt as against the appellant/accused for the offence for which the charges are framed against him. He has submitted that the prosecution materials produced before the learned Special Judge during the course of trial clearly show that the appellant/accused kept everything ready that : 11 : whatever he was supposed to do in the matter on 13.06.2006 itself. He has submitted that, looking to the complaint averments, it is the case of the complainant that he met with the accused on 16.06.2006 i.e., three days after the accused person attended the work and kept the things ready on 13.06.2006 itself. He has also submitted that looking to the documentary as well as the oral evidence of the prosecution witnesses during the course of cross-examination, it is very clear through their mouth that as on 13.06.2006 itself the accused attended the work of the complainant and he kept the things ready for conversion of the land from inam into raitapi land. Therefore, he submitted that when the work was not pending with the appellant/accused, it cannot be accepted that he made the demand for bribe amount, firstly Rs.7,000/- and on negotiation the same was said to have been reduced to Rs.5,000/-. He has also submitted that the records of the case are concerned, consistently the prosecution witnesses have : 12 : deposed that all those records pertaining to the land of the complainant were in the office of the Tahasildar and even the Investigating Officer has deposed in his evidence that the said records were in the office of the Tahasildar from which office he has secured the Xerox copy of the records. Hence, on this count learned counsel has submitted that this also clearly shows and supports the defence of the accused person that on the alleged date i.e., 16.06.2006, the matter was not at all pending with the accused person, even the records were also not with him, he never withheld the documents pertaining to the land of the complainant. Hence, false allegations are made against the appellant/accused in this regard that he has demanded and accepted the bribe amount.
14. Learned counsel has also submitted that though in the examination-in-chief and even in the cross-examination at the first instance, the witnesses : 13 : have supported the case of the prosecution, but when all the prosecution witnesses were recalled at the subsequent stage, the further cross-examination on the subsequent date it completely supports the defence of the accused; the prosecution witnesses say go-bye to whatever they have deposed in the examination-in-chief and the cross-examination at the first instance. Hence considering all these aspects, learned Special Judge ought to have held that the prosecution failed to prove its case beyond reasonable doubt and there are reasonable doubt arises out of the prosecution case and the benefit of doubt ought to have been given to the appellant/accused in the case.
15. Sofar as the explanation said to have been offered by the accused as per Ex.P-6 is concerned, the learned counsel for the appellant/accused has submitted that the prosecution cannot depend on the explanation offered by the accused, but it has to prove : 14 : its case independently. Hence, even if it is stated that the amount has been kept on the table asking the appellant/accused that the same is to be paid in the office at Belgaum, it will not come in the way of the defence of the accused person.
16. Lastly, he has submitted that the learned Special Judge has not at all read the evidence and the documentary materials placed on record correctly and the learned Special Judge has wrongly proceeded in the matter and wrongly convicted the appellant/accused for the said offence. In this connection, he drew the attention of this Court to the wordings of Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, and submitted to allow the appeal and to set-aside the judgment and order of conviction passed as against the appellant/accused.
17. Alternatively, learned counsel for the appellant/accused has submitted that in case if this : 15 : Court comes to the conclusion that the judgment and order of conviction passed by the trial Court is in accordance with law, with regard to the quantum of punishment imposed for the alleged offences, he submitted that the punishment imposed by the learned Special Judge for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act is two (2) years Rigorous Imprisonment along with fine, the minimum punishment for the said offence is one (1) year and sofar as offence under Section 7 of the P.C. Act is concerned, the sentence imposed is one (1) year Rigorous Imprisonment with fine and the minimum sentence prescribed for the said offence is six (6) months with fine. In this connection, learned counsel for the appellant/accused has filed the memo dated 04.09.2017 along with the medical records in respect of the appellant/accused and submitted that appellant/accused is suffering from severe ailments and he is taking treatment with the Doctor. Learned : 16 : counsel has further submitted that because of the alleged offence, firstly the appellant/accused was kept under suspension and subsequently, he has been removed from service. The appellant/accused is having wife, one daughter and three sons. He has also submitted that this is the only criminal case against the appellant/accused and there are no antecedents as against the appellant/accused, hence, he submitted that lenient view may be taken while imposing the sentence.
18. Learned counsel for the appellants in Crl.A.2631/2011 and 2632/2011, which are preferred by the appellants/P.Ws.2 and 3 respectively, has submitted that the procedure contemplated under Section 340 of Cr.P.C. is not followed by the learned Special Judge. In view of Section 340 of Cr.P.C. an opportunity is to be given to the appellants/P.Ws.2 and 3 before registering such criminal case and taking : 17 : cognizance. He has also submitted that during the course of cross-examination, the witnesses have deposed in the manner that as it was projected by the prosecution. Sofar as examination-in-chief is concerned, they have fully supported the case of the prosecution. He has further submitted that the preliminary enquiry ought to have been conducted before proceeding with the matter, which is also not done in this case, and the entire procedure adopted by the trial Court is totally illegal and it is against the provision of Section 340 of Cr.P.C. In this connection, he has relied upon the full bench decision of the Hon'ble Apex Court reported in (2010) 15 SCC 290 in the case of Sharad Pawar vs. Jagmohan Dalmiya and others. Lastly, he has submitted that both the appeals i.e., Crl.A.2631 and 2632 of 2011, are to be allowed and the initiation of the criminal complaint against these appellants/P.Ws.2 and 3 are to be set-aside. : 18 :
19. Per contra, learned Spl.P.P. appearing on behalf of respondent-Lokayukta referring to the first appeal, wherein the appellant/accused has been convicted for the said offences, made the submission that sofar as the demand and acceptance of bribe amount is concerned, prosecution placed satisfactory material before the trial Court. She has also submitted that though it is contended by the other side that the accused kept the things ready on 13.06.2006 itself, but during the course of evidence before the trial Court it is clarified by the prosecution witnesses that after the signature to the proceedings by the Assistant Commissioner, again the file has to go to the accused person and it is the accused, who has to finally issue the documents. Hence, she submitted that if this evidence is looked into, it cannot be said that everything was completed by 13.06.2006 itself and no work said to be pending with the accused. She has also submitted that trap was conducted and during the trap : 19 : proceedings, accused has been caught red-handed when he received the bribe amount, the said amount was tainted with phenolphthalein powder and it is her contention that the accused person himself took the amount from his back side pant pocket and produced before the Investigating Officer. She has submitted that in this regard the inner portion of the back side pant pocket of the accused was washed with sodium carbonate solution, which turned into pink colour, so also, both the hands of the accused was washed in sodium carbonate solution in two separate bowls and the solution also turned into pink colour. She has also submitted that there is a report of the FSL authorities stating that the result of the hand wash of the accused is positive regarding the presence of phenolphthalein powder. She also drew the attention of this Court to the explanation offered by the accused sofar his defence is concerned and submitted that this explanation offered by the accused is also not correct and it is not in : 20 : accordance with the defence that he has raised during the course of cross-examination of the prosecution witnesses. Hence, she has submitted that considering all these aspects of the matter learned Special Judge rightly came to the conclusion holding that the accused is guilty of the alleged offences and accordingly, convicted him. Learned Spl.PP. has also submitted that the judgment and order of conviction is in accordance with the materials placed on record and there is no illegality committed. Therefore, the matter does not call for any interference by this Court. Hence, she submitted to dismiss the appeal preferred by the appellant/accused.
20. Sofar as the other two appeals are concerned, learned Spl.PP. has submitted that though the panch witnesses i.e., P.Ws.2 & 3, who are the appellants herein, supported the case of the prosecution in the examination-in-chief and in the cross- : 21 : examination at the first instance, but subsequently, when the witnesses were recalled and cross-examined by the defence they go on admitting the suggestions put by the defence counsel. She has submitted that the answers given by these two witnesses during the course of further cross-examination clearly shows that they themselves have admitted in the said cross-examination that earlier they have given false evidence before the Court. Hence, in view of the said admission by the said witnesses, no preliminary enquiry is required in the case. Accordingly, learned Special Judge directed the Chief Administrative Officer of the concerned Court to lodge the written complaint against them and to proceed in the matter. Hence, no illegality has been committed and the procedure contemplated under Section 340 of Cr.P.C. has been properly followed by the Court. Therefore, she submitted that there is no merit in the other two appeals and same are to be rejected. : 22 :
21. I have perused the grounds urged in the appeal memorandum in all the three appeals, oral evidence of the prosecution witnesses and the documents produced before the trial Court, so also, the judgment and order of conviction passed by the trial Court and considered the oral submissions made by the learned counsel on both sides at the bar.
22. The brief facts of the prosecution case as per the complaint averments that P.W.1 lodged the complaint as per Ex.P-1. The learned Spl.Judge after considering the materials placed on record both oral and documentary came to the conclusion that prosecution proved its case beyond reasonable doubt and held the accused guilty of the offences. Being aggrieved by the same, the appellant/accused is before this Court.
23. As per the prosecution case, the complainant filed the application to delete the new condition of the : 23 : property and to convert the said property as raitapi and given the said application to the office of the Tahasildar, wherein the accused person was working as a First Division Assistant. The further case of the complainant that, number of times he met with the accused person Sri Kambli and even then his work was not attended and again on 16.06.2006 morning at about 11.00a.m. he met with the accused person, enquired about his work and at that time the accused demanded Rs.7,000/- from him for attending his work and when the complainant requested that the amount is on the higher side, Rs.2,000/- was reduced and ultimately accused demanded Rs.5,000/- from the complainant, if he give Rs.5,000/- then only it is possible for him to attend his work. Therefore, when he approached the Lokayukta Police on 19.06.2006 and given the complaint, on the basis of which case came to be registered. It is the case of the prosecution that entrustment mahazar proceedings conducted in the : 24 : Lokayukta office and thereafter, Lokayukta Police planned to conduct the trap and accordingly the complainant and the P.W.1 were instructed to go to the office of the accused and in case if he demands the bribe amount, then the tainted currency notes will have to be given to the accused person. Accordingly, the complainant and P.W.1 went to the office of the accused and after sometime, they came back and the complainant gave the pre-arranged signal of taking his cap (topi) and wiping his face and accordingly, the Lokayukta Police, staff and another panch witnesses rushed to the office of Tahasildar, then his hand wash was taken and the bribe amount was also received from the possession of the accused person.
24. In this connection, let me refer to the prosecution material i.e., oral evidence of P.Ws.1 and 2. P.W.1, who is the complainant, in his examination-in- chief at paragraph No.3 he has stated that on : 25 : 16.06.2006 he met with accused in the office of the Tahasildar, Athani, it was 11.00a.m. then. He asked the accused to get the land converted into old tenure, for that, accused told that the complainant is required to pay Rs.7,000/- failing which the work will not be done. The accused told the complainant that the order is to be obtained from the office of the Assistant Commissioner, Chikkodi, and that Rs.7,000/- is required to be spent for the same. The complainant told the accused that he is prepared to pay Rs.2,000/- instead of Rs.7,000/-, accused did not agree for Rs.2,000/- and told the complainant to pay him Rs.5,000/- and if Rs.5,000/- is paid he would do the work. The complainant told the accused that he would pay Rs.5,000/- within two days, since he had no money to pay Rs.5,000/- and as he was not interested, went to Lokayukta office and filed the complaint against the accused person.
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In the cross-examination by the counsel appearing on behalf of the accused, it was suggested to P.W.1 that on 19.06.2006 he came to the office of the accused at 10.30a.m., he met the accused and at that time the Police Inspector, his staff and the panchas came from Belgaum to Athani at 1.00p.m., but P.W.1 denied the said suggestion. He also denied the further suggestion that on 19.06.2006 at 10.30a.m., when he met the accused, accused did not received the amount from him and told him that he has no power to do the work in question and it pertains to office of Assistant Commissioner, Chikkodi, but the witness denied the said suggestion. P.W.1 also denied the further suggestion that on 19.06.2006 at about 1.05 p.m. even though the accused did not demand from him the bribe amount of Rs.5,000/-, but by force he inserted Rs.5,000/- in the back side pant pocket of the accused while the accused was in his room on that day. : 27 :
25. So regarding the suggestion put to P.W.1 that the accused never demanded Rs.5,000/- bribe amount from P.W.1/complainant to attend the said work, the said suggestions have been denied. On page No.14 the witness P.W.1 denied the suggestion that he has deposed falsely that accused demanded from him Rs.5,000/- and that he gave Rs.5,000/- to the accused. He denied the further suggestion that he did not go to the office of the Lokayukta at Belgum and filed the complaint at 9.00a.m. and denied the further suggestion that they did not go from Belgaum to Athani on 19.06.2006 and that he did not give Rs.5,000/- to the accused in the office of the accused and deposing falsely to spoil the name of the accused.
26. It is no doubt true, when P.W.1 has been recalled and further cross-examined on 06.02.2010, he admitted the suggestion made by the counsel for the defence, but the point to be noticed by the Court is the : 28 : examination-in-chief of P.W.1, which was recorded on 19.11.2008, his cross-examination was done at the first instance on 24.06.2009 and the further cross- examination was on 06.02.2010 i.e., nearly after 8 months. While appreciating the contention of the defence sofar as the subsequent cross-examination of the learned counsel for the defence is concerned, it clearly shows that the witness has been won over by the defence and that is the reason he went-on admitting the suggestions put to him by the learned counsel for the defence. Therefore, according to me, no importance can be attached to the said cross-examination, which was done after the lapse of eight (8) months that too after recalling the witness and when his cross-examination was already done by the defence.
27. Looking to the evidence of P.W.2, who is shadow witness in the case, in his chief examination he deposed that on the date of trap, morning at about : 29 : 10.30 a.m. they left Lokayukta office and went to Athani and the Government Jeep was stopped nearby the Government Hospital. Himself and the complainant together were sent to the office of the Tahasildar and at the door of the office itself, complainant shown the accused and told P.W.2 that he is the person, who demanded bribe amount. The accused was sitting in a big hall facing towards south. The complainant went to the accused and enquired about his land and the work of raitapi, at that time, the accused asked the complainant whether he has brought the amount which was told, for that the complainant told that he has brought the amount and complainant gave the amount of Rs.5,000/-, which was smeared with phenolphthalein powder. The accused received the amount from his hand, counted the amount then he kept it in his back side pant pocket. It is deposed by P.W.2 that at that time he was at a distance of 2-3 feet from the complainant, thereafter, complainant went outside the : 30 : office of the accused and he removed his cap and by wiping the face, gave the pre-arranged signal to the Lokayukta Police. Immediately, Lokayukta Police, another pancha and the staff, rushed to the office of the accused person and the complainant told pointing the accused that he is the person, who received the bribe amount from him, and after counting the same, he kept it in the back side pant pocket. The Lokayukta Police shown the Identity Card to the accused. Thereafter, two bowls were secured containing the solution and both the hands of the accused were washed and the hand wash taken separately, the solution turned into pink colour, same was secured in two bottles, they were seized and sealed. The witness also deposed that when the accused was asked to produce the bribe amount, he took out Rs.5,000/- from his back side pant pocket and produced before the Lokayukta Police and same is M.O.5, M.O.5(a) is the cover containing the said amount.
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Looking to the cross-examination of this witness by the defence, during the course of proceedings though it was suggested to the witness P.W.2 that he has not at all personally seen the accused person receiving the amount from the complainant, the said suggestion has been denied by the witness. The witness also denied the suggestion that the accused person returned back the amount to the complainant stating that it is not the amount belonging to him and he has seen the same. He has deposed that by standing nearby the accused person he heard the conversation in between the accused and the complainant. Therefore, looking to the cross-examination of P.W.2, he supported the case of the prosecution that he personally heard the conversation and he has seen the accused person demanding the amount and also receiving the amount from P.W.1/complainant.
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28. I have also perused the subsequent cross- examination of P.W.2 dated 06.02.2010 and in this regard it is no doubt true whatever the suggestions put to this witness by the defence counsel, the same have been completely admitted and agreed by the witness, which are totally contrary to what he has deposed in the examination-in-chief, so also in the cross-examination at the first instance. In this connection, as I have observed while examining the evidence of P.W.1 that no importance can be attached to the subsequent cross- examination as this witness also was won over by the accused person.
29. I have also perused the contents of the documents, entrustment mahazar Ex.P-3, so also the contents of trap mahazar Ex.P-7. In the trap mahazar also it is mentioned that the accused person demanded Rs.5,000/-, whether he has brought as told earlier and the complainant told that he has already brought the : 33 : amount then he asked the complainant, then he can give the amount and complainant given the amount, which was smeared with phenolphthalein powder, the accused received the amount and put it in his back side pant pocket and that was about 1.10p.m. It is also mentioned in the trap mahazar that at that time one panch witness was also along with the complainant and thereafter the complainant gone outside the office of the accused and removed his cap and wiped his face and gave the pre-arranged signal. When the Lokayukta Inspector and all other persons came, he shown the accused person to them. Even with regard to taking the hand wash of the accused in two separate bowls containing the solution and the solution turning into pink colour was also mentioned in Ex.P-7.
30. I have perused the report of the FSL Ex.P-18, which is from the Office of the Chemical Examiner to Government of Karnataka, Bengaluru, it is dated : 34 : 01.07.2006. In the opinion column at page No.3 of the said document it is mentioned that presence of phenolphthalein is detected in both right and left hand finger washes of the AGO.
31. So looking to all these materials, the prosecution is able to establish the demand and acceptance of the bribe amount of Rs.5,000/- from the complainant by the accused.
32. When the trap proceeding was over, the Lokayukta Inspector asked the accused person to offer his explanation about the amount that he was possessing, for that, the accused offered his explanation, which is marked as Ex.P-6, wherein he has stated that during the course of proceedings in the explanation, the accused has mentioned that the applicant came to him and enquired about his application and he told the complainant that it has gone to the office of the Assistant Commissioner at Chikkodi : 35 : and it may come after passing the order of raitapi and he told that there he has to make some expenses. It is further mentioned in the said explanation that on 19.06.2006 the complainant told the accused to go to the said office and get the work done, stating so, he kept Rs.5,000/- and in turn the accused person in order to tell the complainant that the complainant has to go to the office and to call the complainant, in the meanwhile the complainant went outside and immediately the Lokayukta Police came and caught hold the accused.
So even this explanation offered by the accused person also clearly shows that on 19.06.2006, the complainant came inside the office of the accused and he gave Rs.5,000/- to the accused. The amount is kept on the table, but as per the prosecution case, the accused, after receiving Rs.5,000/- from the complainant, counted the same from both hands, then he kept the same in his back side pant pocket. If the explanation of the accused is to be accepted that the : 36 : complainant himself kept the amount on the table of the accused towards the expenses as told by the accused, it shows that the accused has not at all touched Rs.5,000/-, in that case if he has not touched the amount, when his hand wash was taken in the sodium carbonate solution, there was no question of said solution turning into pink colour. Not only that, even the inner portion of the back side pant pocket of the accused also taken wash in the sodium carbonate solution, same also turned into pink colour.
33. Looking to these materials, the explanation offered by the accused that the complainant kept the amount on the table, cannot be accepted at all and the accused person has not at all established his defence. Apart from that on the side of the prosecution, there is an evidence through the mouth of P.Ws.1 and 2 that the accused demanded and accepted bribe amount. Even in this connection, looking to the cross-examination of : 37 : P.W.1, there is no acceptable material placed by the defence, if the suggestion made to P.W.1 during the course of cross-examination is taken into consideration again it is contrary to the explanation offered by the accused. On page No.13 of the deposition of P.W.1, a suggestion was made to P.W.1 that on 19.06.2006 at about 1.05.p.m. even though accused did not demand from him the bribe amount of Rs.5,000/-, by force he inserted Rs.5,000/- in the back side pant pocket of the accused while the accused was in his room on that day, the said suggestion was denied by P.W.1. So this suggestion is quite contrary to the explanation offered by the accused in Ex.P-6. As per Ex.P-6 it is his contention that the amount was kept on the table. Therefore, I am of the opinion that the defence has not at all established the explanation taken as per Ex.P-6. Therefore, taking into consideration all these materials, the learned Special Judge has rightly came to the conclusion in holding that the prosecution proved the : 38 : aspect of demand and acceptance of bribe amount of Rs.5,000/- by the accused from the complainant (P.W.1). Even in the cross-examination of P.W.2 also he specifically deposed that after making arrangement of alternative pant to the accused person, took the pant, which the accused wore and when the inner portion of the back side pant pocket of the said pant was washed in the sodium carbonate solution in the bowl, it also turned into pink colour. Hence, considering all these aspects of the matter, the learned Special Judge rightly came to the conclusion that the prosecution placed the acceptable and worth believable material to show that there was a demand and acceptance of bribe amount.
34. Looking to the said material both oral and documentary it cannot be said that the judgment and order of conviction passed by the trial Court is illegal and not sustainable in law. There are no grounds for this Court to set-aside the judgment and order of : 39 : conviction passed by the trial Court. Even with regard to the contention of the learned counsel for the appellant/accused that on 13.06.2006 itself the work was completed and there was nothing to be attended by the accused is also not satisfactorily established, but looking to the cross-examination of prosecution witnesses again the contrary suggestions were made stating that the accused was not supposed to attend the work and he was not authorized, when as per the suggestion, he was not authorized to attend the said work, where is the question of taking the contention that on 13.06.2006 the accused has completed the work on his part. Hence, there is no merit in Crl.A.2846/2010.
35. Sofar as the punishment and the sentence imposed by the learned Special Judge is concerned, I have made reference to the arguments made by the learned counsel for the appellant/accused that lenient : 40 : view may be taken in the matter that in case the Court comes to the conclusion to confirm the judgment and order of the trial Court. I have perused the medical records produced by the learned counsel for the appellant/accused regarding the health condition of the accused and it is an admitted fact even according to the prosecution that immediately after registration of the case, accused has been kept under suspension and subsequently he was terminated from the service. It is the contention of learned counsel for the appellant that the appellant is having wife and four children and he has to look after them and it is also submitted that this is the first case booked against him and he is not having any other criminal antecedents. I have also perused the provision of Section 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, the minimum sentence for the offence under Section 7 of the said Act is punishable with imprisonment which shall not be less than three (3) years, but which may extend to seven (7) years and : 41 : also liable to pay fine and sofar as the offence under Section 13(1)(d) of the said Act is concerned, the minimum sentence punishable is an imprisonment for a term which shall not be less than four (4) years, but which may extend to ten (10) years and shall also be liable to pay fine.
36. Looking to the punishment imposed by the learned Special Judge in this case sofar as the offence under Section 7 of the said Act that he has to undergo RI for a period of one (1) year with fine of Rs.5,000/- and in default, SI for further three (3) months. Sofar as another offence under Section 13(1)(d) read with Section 13(2) of the said Act, he was sentenced to undergo RI for a period of two (2) years with fine of Rs.5,000/- and in default, SI for further period of six (6) months.
37. I have perused the order passed on the sentence by the learned Special Judge, who has taken into consideration the submissions made by both sides, : 42 : then he imposed the punishment. Looking to the nature and gravity of the offences, so also, the punishment imposed in this case, the sentence imposed by the learned Special Judge itself is the minimum sentence, which is proportionate and reasonable. Hence, even the sentence aspect also does not call for any interference at the hands of this Court. Accordingly, even the submission made by the learned counsel for the appellant/accused for reducing the quantum of sentence is also rejected.
38. Sofar as other two appeals i.e., Crl.A.2631/2011 and 2632/2011 filed by appellants/P.Ws.2 and 3 are concerned, the main contention of the learned counsel for these appellants that the procedure contemplated under Section 340 of Cr.P.C is not at all followed in the case. In this connection he relied upon the judgment of the Hon'ble Apex Court reported in (2010) 15 SCC 290 in the case : 43 : of Sharad Pawar vs. Jagmohan Dalmiya and others that without following the said procedure and when conducting preliminary enquiry without giving an opportunity to the accused persons to submit their say in the matter directly such order cannot be passed.
39. I have perused the said judgment in the case of Sharad Pawar vs. Jagmohan Dalmiya and others and in paragraph Nos.7 and 8 of the said judgment, the Hon'ble Apex Court observed as under:
"7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to file complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done.
8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned : 44 : order of the High Court passed in the application filed by Respondent 1-plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry."
40. Therefore, looking to the said decision and the principle enunciated in the said decision even according to Their Lordships, the Court has to give opportunity to the accused persons and also to conduct the preliminary enquiry before passing such order, but admittedly in this case as submitted, no such preliminary enquiry was conducted nor there was any such opportunity given to the appellants/P.Ws.2 and 3 before registration of the case and issuing the process was conducted in the case.
: 45 :
41. In view of the said decision and also the provision of Section 340 of Cr.P.C., I am of the opinion that the Chief Judicial Magistrate has not followed the correct procedure contemplated under Section 340 of Cr.P.C. Therefore, the order, which is challenged by P.Ws.2 and 3 in Crl.A.2631/2011 and 2632/2011 are not sustainable in law. Hence, I pass the following:
ORDER:
i. Crl.A.No.2846/2010 is dismissed. ii. Crl.A.2631/2011 and Crl.A.2632/2011 are allowed. The impugned order passed by the Chief Judicial Magistrate is hereby set-aside and both the matters are remitted back to Chief Judicial Magistrate to consider the matter afresh and to follow the procedure contemplated under Section 340 of Cr.P.C. and to proceed in the matter in accordance with law.
Sd/-
JUDGE BSR : 46 : BRBJ:
Crl. A. No.2846 of 2010
08.09.2017 Order on I.A. No.1/2017 Heard the learned counsel appearing for the appellant/accused and also the learned Special Public Prosecutor representing the respondent-Lokayukta on the application - I.A. No.1/2017 filed under Section 482 of the Code of Criminal Procedure. This application is filed praying the Court to recall the order on sentence passed by this Court in this appeal by its judgment dated 05.09.2017, whereby the judgment of conviction and the order of sentence passed by the Trial Court has been confirmed.
I have heard the learned counsel appearing for the applicant/accused on the said application and so also the learned Special Public Prosecutor. : 47 :
Learned counsel for the applicant/accused made the submission that the alleged offence is dated 16.06.2006 wherein a trap was laid as against the appellant/accused, whereas the judgment and order of conviction passed by the Trial Court is dated 21.10.2010. The learned counsel drew the attention of this Court to Article 20(1) of the Constitution of India which reads as under:
20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Hence, the learned counsel submitted that in view of the said position of law, the request of the appellant may be considered and he also submitted that after this case, firstly, he was kept under suspension and thereafter he was removed from the said post and from 2006 up till now i.e., for a period of 11 years, the : 48 : appellant is without any job. Hence, on this ground, he made the submission that the order passed by this Court only to the extent of the sentence aspect passed on 05.09.2017 be recalled and modified by imposing minimum sentence in respect of both the offences.
Learned Special Public Prosecutor opposed the application on the ground that though as on the date of commission of the offence, the minimum punishment prescribed under Section 7 of the Prevention of Corruption Act, was six months and for the offence Section 13(1)(d) read with Section 13(2) was one year, but considering the maximum punishment even according to the law that was existing as on the date of the offence, it is within the maximum limit. Hence, the learned Special Public Prosecutor submitted that the Trial Court, after considering the materials imposed the punishment which is proportionate and proper and does not call for modification.
: 49 :
Though this Court disposed of the appeal on 05.09.2017 by dictating the judgment in the open Court and even the Court heard the learned counsel on both sides on the sentence aspect also, but on that day, learned counsel for the appellant/accused not brought to the notice of this Court regarding the minimum sentence in respect of both the offence as on the date of the alleged offence. The judgment is not yet signed. In view of the submission made by the learned counsel for the appellant and perused the provision under Article 20(1) of the Constitution of India and so also the punishment prescribed for both the offences i.e., under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and also considering the submission made that the appellant has already lost the job and he is having family to maintain, the order regarding sentence aspect passed by this Court on 05.09.2017 and as it is not yet signed, it is hereby : 50 : recalled and it is further ordered that in view of the materials and also the submission made on both the sides, the sentence imposed by the Special Court is modified as under:
The appellant/accused is sentenced to undergo imprisonment for a period of six months and also liable to pay fine of Rs.5,000/- and, in default of payment of fine, the accused shall undergo further imprisonment for a period of three months for the offence punishable under Section 7 of the Prevention of Corruption Act.
The appellant/accused is further sentenced to undergo imprisonment for a period of one year and also liable to pay fine of Rs.5,000/- and, in default of payment of fine, the accused shall undergo further imprisonment for a period of six months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
The sentence in respect of both the offences shall run concurrently.
: 51 :
As per Section 428 of the Code of Criminal Procedure, the appellant/accused is entitled for set off the period of the custody period if already undergone by the him.
With the above modification regarding sentence as stated above, the judgment and order of conviction passed by the Special Court is hereby confirmed.
Sd/-
JUDGE KMS