State By Lokayuktha Police vs V B Mallikarjunaiah S/O Malleshanna on 15 February, 2012

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Karnataka High Court

State By Lokayuktha Police vs V B Mallikarjunaiah S/O Malleshanna on 15 February, 2012

Bench: V.Jagannathan

Km):

THIS APPEAL COMENG ON FOR HEARING THIS BAY'?
EH8 CQURT DEZLEVELRED THE FGLLQWING:

JUDGMENT

The acquittal of the respohdent _1:)'y*th¢»ir§a1_c0:1;1fi. in respect of the offences puniishegbléh' 13(1)(d) 1'/W 13(2) of the Pfevgntihn };fVco:f:%:;;p::o;1 Act, Called in question by the of tizéstgéie,

2. The Case short is that the accused. ih the office of the Special Hemavathi Channel Diviaﬁhh, ' h? :%ha§Igg;na1;§:1;écj Rs.1,500/~ from the compiaihaiit' for releasing the c0n':pensé;fieh"'éimhéuﬁt of Rs.5L3OGf~ {awards the A3g';'q::i:%:';3§1i'*.e:}$:A:«_.af ihe Eanﬁ and tgwards iihéé said d€E:1&13<i I&§t%;{_$<%§«:'3c{:€pt§d R3299/» 03:1 25,2355 and tha- 'bé;3an;_:€<:':: -éhfhount of RSAEOOG/~ was to be paid by {ha ..c;i:>_::1p§a§ir:a:1%: is the acaugsd 1:0 gﬁi the: campengaiian °.Va;:1:'éz:I:: E0: wiﬁing ta pay the said ameuai; the V' '"'j$Qn::p1a;iI';a1::%; a§pr<>a<:hed {he Lakayukia pakss 336$ §€:ssi%g€€?; his i:e:;§':;§>};2i::Ei 32; pa? E';;:.Pf: 13:1 the vsrgg 533216 éiay '»./:9 i.e. 26.'?3O5' The said complaint Eed ﬁe the entziuﬁtment rnahazar being drawn as per EXPZ cemplainaht accompanied by the shad_Qw:"'»*zjt'fieens_ ?TW<5» H.G.Suresh going to the offieejef '* 2.00 p.111. and the trap: was'":31iccessfd'}.;.,»:'_;I'hc mahazar was drawn as 2.30 and 6.00 pm. on the fhe relevgmt documents including. as per EXP6 and the as per EX.P14:

and rHo}1€gh charge sheet was S11b1':1~:h1_itt€=%"~A-._1'«3]1()\2\ztir1g the accused pleading not g1;14ii*j_}f.tvhe" examined 7 witnesses and 15"d.v€::)!C1l1"'I:"1€f1JES§ On the side if the accused, were marked M.QS 1 to 12 were also bfyeéhe prosecution during the iriai.

" Learned trial judge, efier evidence '' 'B.-§?::£i>A:"eeie;*teie:tc found certain": §iS{3I"€§8.§':C}:€S in the VA V. ._..evi:ier1ee cf ?We 1, 5 and 6 as accerciing is ihe ieameé iriai judge, ihcrc were different versiens given yegarciing ihe deemed ef bréhe ameziné and eccepiahee by ihe 6,/Z , aeeueed as wet} as the recovery ef the amount and therefore the trial eeurt thought it fit to give the'-eteeused the benefit ef doubt and it also observed was pending with the accused as the eof11.j§)1aji_11éint 'h.é1_dV' not given the relevant d0eume;r1ts"'tet.. get -:eef_f1pe.1j1e'atidn. :4 Thus, the order of acquittalwaetthe..1'esu1t;'.;v§'t'1ieh'te"r1.ew5 called in question by the

4. I have heart? counsel Sri. S.G.Rajendra_:Re§1d3jfAVfef'the:'af)pe1I'a1::VtLSta.te and Sri. M. Srinivas 5foftthte-':7_}*espQf1d_e1:'twe,eeused and perused the I'€COI7CiS"O.f_ this . _ for the appellant argued th4z;tt"the ttia1,V_eeurtv' failed to appreciate the evidence in jgvierepeetive and the eviéenee ef ?1/V»: the ._e'é;:tpEt:{i';f::e.ut§"eupperteei by that ef PW-5 the shadow véitueeie ;::h.d the trap mahazm EXQB else eenfirme the V. 'reeetet ef the bribe ameunt ef Re.E,3®G;'~» by the "jaeeueed Ziﬁd tee aeeueeei has given expianatiee tr: 'tttwrittng in this regaré ae per EXHPSQ Thereferee the trial CGEJET, eetztd net have meée eéeeh et miner tiieerepaeetee : E at .w*ﬁ ,, \ J in the evidence and eeuld not have aequitteé the accused on the ground of benefit ef doubt when the evidence is very Convincing and re1iabie,__"* . connection learned counsel took me T' evidence of PW-I the T. witness and also the inveettgatitig 'o~fficer_é5§,1.tiv"to thte."tré1'peV mahazar EXP3 and the e:xfpl.t;:.1;::atiori" by the accused as pe1~.'*[;1o'inte-elﬂ oht from the evidence of PW--1 thVatf' was given to the iwajf the very saxne day of the p.m. and this also shovfe had been given by the eomptétinent.' prosecution having brought hegne then of the accused beyond all reasenable amount aiee having been aeeepteei and accused, the tyiai eetzrt eught tie have C1;'£:'2?.§V1"i:.ﬁ;é preeumptien ti/'S 20 of the Prevehtien ef . *%iZ€f;;"::*:1;§tie:: Act. The triai court did net eeneiﬁer the eeie': "V-pfevieéeh ef ESAXE as: welt as the eerivineing evidence 2 Vgeiaeed eh record amt therefere the fénéing reeerdeﬁ heihg §;'G§1§I"3.E'§;' tie the evidence en feeefct, the eaid é ﬁnzthrlg 18 therefore perverse and requiree ta be interfereé with in this appeal notwithstanding'-the fact that the appeai is against the order of aequitte4i.V :' ~

6. Learned counsel for; the res-peﬁdVefht""v _t:>h _ other hand supported the viex%¢At2:1§l_§e1':i by and argued that there is'eIjeetepa'I1ey vih:t.he._:e'viVdenee Cf' PW'-1 aI1dPW~5 with reg2:11:r:t:'t0_ the I.7[.'1'2"3'i'tI'11".!.fi1'fA..t§')f eteeﬁeed accepting the to PW~1, the amount wags' drawer of the accused; was given to the clgfﬁ, by the complainant.

ThetefQfe_, in the evidence has rightly led to giving dotzbt of benefit to the It ishaieee argued by referring te the evidence ef V witness has stated that the right hand telfete pa.:it§;eiei§et wash also was not taken As far as the t:a.p"ef'§iei3§e eenduetmg the investigation ie eeeeereezi it argueé that there was he prepee investigatien Qjid U ___5E:><:.P3 the trap mahazer was met the eetreet rhahaear dream ené it eemizet he b€1£€V€§e For 'shite? it is W3 submitted that it has eeme in the evidence f€;éf_PW«} during the cross examination that, he wen;t...t§j;_»f:he';3iiiee ef the accused between 4.00 and 4.30" ifiitiiie were to be accepted, the queeti0ii4T'ef'"<:1réiwiiﬁ'g., '* mahazar between 2.30 and therfefoi'e igteliirlijie, arise. It is also argued 1:h2if;~'VV1 epeak about the presence of 'Wit\»>neseAA eiid the fact that PW-5 was distance from PW-13 also V'c:t5"'ii>x/hether PW--5 could have """ Under such __taken by the court below is just and to be interfered with in this apggeai, ~ Aeg, far as the documents are eeneerneci :eferi'img:i'e-aiiinthe evidence ef PW43, it is argued that :he reie2}e.::%: iieeumente were get given by the eempiainani fee eeeeeee and the eempiainen: eiee admite that he 4' _..ha§ 1/"get gives: eerieizz eeeumenie ie the aeeueeﬁ and iherefere ihe question ef eempeneatier: :29: being eaié deee me: eriee as ihe eeezeieieeei iiaei :10': givem eeieveet wfi"

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being quantifieel at Rs.5L3OC},f~, says in hie evidence about the accused demanding 5% of the commieeton en 19.5.2005 as the eomptainant was gettrmga The complainant did not agree for the sethleietatidth theh the accused told that the rece§Jfe'1e"i;Ve1*e ahd 14. then the accused br0ught_doWh. the "to":IA3"'/txthef' the compensation Leg" ~._Rs.-i.,5QO/~. The complainant gave Complaint on 19.5.05. Thereaftef was drawn as Der EXP2.

eetueaif trap is ceneerned, PW-1 has <ﬁep'04:se'd jihjihiie. that, he went to the office of the aeehsed' and AgetV'e"ttVreeords t0 the accused and the eeeueee: »_e.ske§'hi:e:1' as to Where was the meney, PW~1 V the money and the accused pulled the table asked the eompiainant te put the meney thef:i'_A'i-PWWE put the meney H: the table sirawer. The '.§§t:i$§ staff whe were there were ihtredtzeeé and then U _5§W»"t gave signal amt iekaytxkte peiiee eame ieeiete and the 3.i2.£T1l$€€§ teek the mehey free: the tebie drawer and 2 s.

M; y med to put 11: in his pockef; and at th~et._":i:§1e:_the Lokayukta police held the hands of took the amount from the hands dofﬁhde 9 7 has also deposed regarding "hand Tithe accused turning the so1'ot.io.:1 The records were seized and trap: drawn as per EXP3. ' A 11; I:1_:th_e co"dfee:§;fV PW~1 has not fwdidtdiviidfedgard to the accused demaj:_1di:1"1g2 money being put by PW~ in__to as per the instructions of the accused, "but hand, PW-1 has reiterated in thecross ex-anditiation that, when the accused Came and . V. esé;?ai;':"d':he..eheir«,VHh'e« asked PWEI to put the money in the accerdingly PW11 pm: if; there. PW31 has d_e:;iedAdthe suggestion pus': to him that he kept the AA :::eee};:§n ihe 'ieble drawer ee iha': ii eouid be seen by d' aeeesed. He has also admitied in the cross U ___5eXami:r:atio:": that, when he dropped the money into ihe tabie drawer ef the eeeused, he was eieee and thereefier 5% $9 7,"

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when he gave the sigma}, the others came inside and he further saye that it Wae about 4.00 or 4.30 p.m--,_ when he werii inside the chamber of the aecfgeeid;:i@}Fhis Witness also says that, he wrote the c0mp'1eii13i;eV.ef 11.30 21.111. as per EXP}. It is;'e,"iSd'ir1 his; b T no washing of the right hand sieie peheketv Wes-4'.fa}V§enL by the Lokayukta police.

12. PW~5 witness and he has deposecjﬁhat, gvelong with PW--1, he went around 2.00 p.m. and of the accused which was stood at a distance of 3 feet from P\7V\V?"4"-T,Vr1e2;:1f PW'-»1 told the accused that he eeme aneciithz-e--e:'eeused teid him that, whether it was V had came and then P'W«5 deposed that 'afier ahetijihene 0:' iwe :ninuI':es§ he was eiient and PVWE :e§d"e§idreee§ng 'éhe accused as Sir and Véihai he had and the eeeueeé ﬁeld esheihee he has hreughi and U __e3:he:: PW-«E eaid Er: ihe affirmative and iheh ihe aeeesed ield fie give aged {her} ?'iE"v'~§ gave the §'BQI'}€§%2 }PW~§ has stated that the accused received it in the right hand and kept it in the right hand side pant pocket. PW?--it gave the signal and Lekaynkta police Came accused was taken to the adjoining ro0ifn""wheif_e~ sodium' Carbonate solution was prepait'ed::"ai<i.t:i«_jthie it wash of the accused was taken the eeeititidn t;ui*'ne.dtV to light pink Colour. the pant pocket washed in the solution into pink cQ1_Qiii~"., jateo identified the currency /- denomination and alsoi. gave the explanation stating money for encumbrance eertifieate. :.4e"t:':oiee;.~eXaminati0n of this witness als;§,"iiQ serious 'damage has been caused insefar ae the demanding the meney and aeeepting it from the ._e'en1p'iaii:.ant't"'V Ne doubts in the erase examinatien it is bteigght date that Pi/V-5 was standing at 5 er ESE feet "distan'ee facing the deer and einee ?W»~E gave the signal; eame tea knew that he had given the money' it is it "Melee depesed by him that the ineney wag hreught and kept en the tabieg in ether t°i3{}E'I1 and theeeafter hand wash of the accused was taken; The witness also says that, he did not read the eentente ef trap panehanaxna.

13. PW~6 Shivaramaiah,.4wh:em_fe'e v4.'_p.anch' ; 2 witness, has also confirmed 1n"'h1e.,_Ae&/idengé to the office of the aeene'evd"*~.at and after the signal Vvae-~given.;"ihe'1inv.e'si:igeti11g~A"dffieer told that the accused amount and then the agcaesked xeadjoining S.L.A.O. office and the accused turned the so also the inner lining of the-rightvti-andijeide pocket wash of the accused. 'V 14, Rengaswamy is the police inspeeter of .A was the investigating' officer in éhe ease he 13:'e'°s;vay;<;:dtha:, en 26.7.95 aﬁ': nae gem" em: eame and..gé:e;e'i.he eempiaint as per EXP} and on the basis ef xv§zE*:_§ehe ihe ease Wee registered and {he wiineee epeaks "the entire invesnigaiien feeding up is ':he imp dﬂmahazar being drawn and the accused giving his expianefiéen daring {he fire; nzehazar as ner E;><;.l78e 1»?

~»«>'= 5 //w»4,w*'°"p wﬁyﬂ 35 £-

15., The trap rnahazar itself marketi- reveals that the accused gave hie T' the effect that he had received ~ T from the complainant, but it wé1e__ te_Vjvard:3'V,g;§ettit1gV eertaih documents like exicumbreheel.eerﬁlﬁeete:f1j0h§ 'vih'e'V'Taluk office. Ex.P8 is the "eXpla.nal:ibhv...gi3fen by the accused and a plaih' letter would go to Show ._tl'16 egeeepted receipt of Rs. tF1'e:f.'ee:hﬁleinant though says that for collecting certain doeu'ments» _ Thus, :3. hateful examination of the evidence 0l:_i:hee.ma'ﬁefialV'\§§7itr1esees PW--L PW~5 and PW43 read in " with the cements ef the trap mahazar EXQPB . e.:f:«:l" ih:e..Vve;;jjslana:ion given by the accused as per EXP8 lea_.e:ie_fi:<3 .§l'1e one and the ehly eenelueieh viz., that the he aeeuseel accepted the hriheeameuhi ef Rsll§3QG/~ frem eempleihaht fer giving {he eempeneatieh almeuh: *:e _.:ihe eernplaihant. Ne eiher ihferenee or eenelueieh ear:

he gsessihle in the ligh': ef the afereeaid peeiuve evi:ie3"1ee é a placed by the preseeutieh. The demand of bribe amount is also established through PW~1 and PW-5.V.-~-___If one aeeepte the bribe amount, the presumptte'h:'V"-§i;'fesE comes into operation and unless the aceueedj'ivsvt'a.bie_ftd place rebuttal evidence, there ziemhe' «s_c:i3pe,'th'a:1_ tdarrive 7. at the presumption that the aecueged bribe amount as gratificat1<5'n§

17. Thoughvtheife ereVt':--ee1;t:eih:e1i»s_erepancies in the evidence regazitfdt amount being paid sihee told him to put the '§vhe;:'eas PW«5 says that PW"

1 gatxtfe' the and the accused took it in the'-« it into his packet, the said. d:e'ere;ee;::e;g: eat';-------he due to the time gap between the V V"eh'ee1*ee;t:ehT:V'e§z PW"-5 whe was etahditeg at aheut 3 feet ttfrjefh thefgiexce ef the aeeueede Therefore it ie possible that ehedew witness eeziéd have witneseeci that hart eetien ef the eeezgaeee' takihg the hetee frem the U étahie §:'8£ii7€i1 eeunting it and putting it ihte his right heed; side pee: eeeket. Sieee heth the heed we.eT:: ef the S":

,,,,,,,, y/J'/V \ 26> accused as well as the right side pant pocket of the accused turning the ehernicai solution into pinleeeleur, it is eetebhehed that the accused had accepf:~ed_'th_e'Ii;:gfihe amount from the complainant and the said fact that the accused his ' explanation that he received the'.etﬁ1oun.t'''V'ef 9!.

from the complainant. ere certain discrepancies in toﬂthe time at which the cOm.P1ain§3,1<:»t:.x;feht of the accused and the about the presence of PWW5 has stated that he citd and stood at a distance of 3 feet x2t%ate'E1ed nothing has been brought e1J;§::n..the Cress exetninatton ef PWM1 te diehelieve his ,A 'etefeiehtee _4:i¢§:h regard te accused demahﬁihg and 'Vhribe emetzht eed PW-M1 alee stating ie his e%}ide:':ee"that, er; the eeme day ef the trap at ereunci er ?'.QQ ere, eheque was given fer the '*:ee:51':peneai:i01: atneuetg the evidence er: the whale ﬂees ' eet give rise te ﬁeuht the ereseeutiei: eeee. Learned {eta} jeetge etter taking mete ef the tether dieereeeeetee m ,2?» z z _)>") J V M,» Jsvf V. in the evidence Of PWw1§ PW-5 and PW"-53 has given the benefit of doubt is the accused. This is H053, case where it car: he eaid that there is Viihe prosecution case, but on the other handV1__,fheV eii{ide11ee"dr)f» PWS 1, 5 and 6 is convincing, Cogent:.ai1Td'ife1ieihie_éindfis ' further confirmed by the e:><1:A)1.:a_.f1:e:'.tioI1eVvgiyeh accused in Writing as ffhedifefore, the conclusion reached is cdrdrary to the evidence on record and::waev--.V§;,}1'th'; be termed as perverse at the hands of this " ~. ._ V _ v{'1L1.€St1'()I'1 of sentence. Learned e0unse1V"d"--feI'» Vfh_eA'..Vdpgﬁ»e11ant sought for maximum p._§ﬁ1§shr;:en: thee--«imposed upon the accused, Whereas W§eam'ed" '..?f:Q:1;11'jeefE fer the resgeendeni; submits {hat rniihim;J,:ir;a'?.§;i1::is5h:I:er1t be imposed, VEQ. Eta the Eight ef ihe aforeeaid S':lb1'EEZ:SSiQﬁ pat 'AA'-fefieardg I groeeed :9 pass ehe feﬂovsing erder: w'''/» 3 ﬁt}! Criminai appeal is: aiiowed by setting aside the judgment of a<:qui":ta1~~.passed by the trial court.

The respondentuaccusedl . __is. ::5"m?'ict4éd" .._V for the off€:ﬁf:é"«pL1ni.sh;ibicV "ijnciser 7. Sections _ 7, 1 1 r/ 3 (2) VV V Preventioif C0rru'p.tV_i()'n In .§()~nViCtif§ﬁ / S 7 of the P.Ci_ r'rf§Sfi_Qh;'dent~accused is "Vsef;it}e1€1:.C'<.§:d SI. for six V ;»)ay fine of Rs.5,000/-

, defﬁﬁylt of payment of fine, to A' 8.1. for @116 month.

£::1 'reispe<:'t sf Conviction ufs 13{1j2(<:I} E'/'E7 33(2) <12? éhs PC. 53?, éhé raspendeni is senliencsd to urzﬁasrge S3. for @116 year and else :9 pay fine sf Rs;1§§$QG/- ariﬁ is defazﬁé'; Q5 pajmieni: sf finé, :Q anderge S1. for two menthsk Ths subsiamtive Seniericss 33133 {'21:} C{::::i::;:3*€nﬁjg argd ihe resyandeﬁi is entitled. to get off for the period of custody already undergsne by The trial court is directed to ensure.-A4'é::0m;§1i:§ir1:f§€of' the aforesaid OI'd€I'.

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