Karnataka High Court
Shrinivas Suresh Rao Subnis vs The State Of Karnataka on 26 May, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2646 of 2012
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 26TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO. 2646 OF 2012 (C)
BETWEEN:
SHRINIVAS SURESH RAO SABANIS,
AGE: 30 YEARS,
OCC: VILLAGE ACCOUNTANT,
HIREBAGEWADI, TQ and DIST: BELAGAVI.
...APPELLANT
(BY SRI. B.S.SANGATI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
POLICE INSPECTOR, KARNATAKA LOKAYUKTA,
BELGAUM, R/BY THE SPECILA PUBLIC PROSECUTOR,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI. ANIL KALE, SPECIAL P.P.)
MANJANNA
E THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF
CR.P.C. SEEKING TO CALL FOR RECORDS IN SPECIAL CASE
Digitally NO.107/2010, ON THE FILE OF THE SPECIAL JUDGE (IV ADDL.
signed by SESSIONS JUDGE) AT BELGAUM AND SET-ASIDE THE
MANJANNA E JUDGMENT OF CONVICTION AND SENTENCE PASSED ON THE
APPELLANT DATED 16.04.2012 AND SET THE APPELLANT AT
LIBERTY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 2646 of 2012
JUDGMENT
1. Heard Sri B.S.Sangati, learned counsel for the appellant and Sri Anil Kale, learned Special Public Prosecutor for respondent - State and perused the records.
2. This Appeal is filed by the accused challenging the Judgment of conviction and order of sentence dated 16.04.2012 passed in Spl.Case No.107/2010 on the file of IV Additional Sessions and Special Judge (PCA) at Belagavi.
3. Brief facts of the case are as under:
A complaint came to be lodged by Sri Avinash Shivaputrappa Aralikatti to Lokayukta Police, Belagavi on 02.03.2009. Based on which, Lokayukta Police registered a case in Crime No.2/2009 for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act', for brevity). The complaint averments reveals that the complainant owns a land in Hirebagewadi village bearing Sy.No.401/2 measuring 3 acres 9 guntas and in 2004, the elder brother of the complainant by name Eranna Shivaputrappa Aralikatti had purchased the same.
Thereafter on 29.12.2008, half of the said land measuring 1 -3- CRL.A No. 2646 of 2012 acre 24 guntas was gifted in favour of the complainant by a registered gift deed. Thereafter, the complainant gave an application to the Taluka Office for transfer of revenue entries in the name of the complainant. The said application was received and inserted 'J'. 'J' form was also received by the Taluka Office from the Sub-Registrar's Office.
4. In order to find out the fate of the said application, the complainant contacted the appellant herein. In that regard, the accused-appellant demanded Rs.3,000/- as illegal gratification. On bargain, it was freezed to a sum of Rs.2,000/-. Same was refused by the complainant and he approached Lokayukta Police and lodged a complaint.
5. The Lokayukta Police after getting confirmation about the veracity of the complaint averments secured two independent government servants to act as panchas for the intended trap. The Lokayukta Police also made preparations for the intended trap and obtained Rs.3,000/- containing four currency notes of Rs.500/- denomination from the complainant and they noted the numbers of the said currency notes and smeared phenolphthalein powder on the currency notes and -4- CRL.A No. 2646 of 2012 demonstrated its reaction with sodium carbonate solution in the presence of the panchas and experimental mahazar was conducted in the office of the Lokayukta. The signatures of the panch witnesses and complainant were taken to the experimental mahazar. Complainant and shadow witnesses were instructed to approach the accused and on demand to handover the tainted currency notes to the accused and give a pre-designated signal to the raid party. Accordingly, raid party proceeded in the government jeep to the office of the accused at Belagavi and they came to know that the accused had gone to Hirebagewadi. Thereafter the raid party came to Hirebagewadi by then the accused had come back to Belagavi. On further contact with the accused, accused told that he will be meeting the complainant in Hotel Pranam at Belagavi. Accordingly, the complainant and shadow witness met the accused and gave the currency notes, which the accused kept in his shirt pocket. Thereafter, pre-designated signal was given to the rest of the members of the raid party and immediately raid party came to the hotel and apprehended the accused. On enquiry, he told that the tainted currency is in shirt pocket and the same was seized by the raid party. Colour test was -5- CRL.A No. 2646 of 2012 conducted and the colour test stood positive. The details of the raid has been reduced into writing in the form of trap mahazar and thereafter, the accused was arrested and produced before the Special Judge and from there, sent to judicial custody. The investigation agency carried out the investigation thoroughly and thereafter, charge sheet came to be filed against the accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the P.C. Act.
6. Presence of the accused was secured before the Special Court and a charge sheet was framed for the aforesaid offences. Accused pleaded not guilty. Therefore, trial was held.
7. In order to prove the case of the prosecution, the prosecution in all examined 12 witnesses comprising of the complainant, shadow witness, FSL Officer, investigation agency, higher officials of the accused and also sanctioning authority as PWs.1 to 12. The prosecution also relied on 28 documents which were exhibited and marked as Exs.P1 to P28. Material objects in all 9 in number were relied on by the prosecution which were also marked as MO Nos.1 to 9. On conclusion of the prosecution evidence, accused statement as -6- CRL.A No. 2646 of 2012 contemplated under Section 313 Cr.P.C. was recorded by the learned Special Judge wherein accused has denied majority of the questions and in respect of question no.63, the accused has answered that he would be filing a written statement. He also answered that he has got witnesses to be examined on his behalf while answering question no.64. The written statement filed by the accused as contemplated under Section 313(5) Cr.P.C. is part of the records which reads as under :-
"¹.Dgï..¦.¹. PÀ®A 313 gÀ CrAiÀÄ°è ºÉýPÉ £Á£ÀÄ J¸ï.J¸ï. ¸À§¤Ã¸À «£ÀAw ¥ÀƪÀðPÀ ¸À°è¸ÀÄwÛgÀĪÀ ºÉýPÉ.
£À£U À É F PÉù£À ¦AiÀiÁð¢zÁgÀ£ÁzÀ C«£ÁµÀ CgÀ½PÀnÖ EªÀ£À ¥ÀjZÀAiÀĪÉà EgÀ°¯Áè ºÁUÀÆ 02.03.2009 gÀAzÀÄ ¸ÁAiÀÄAPÁPÀ 5.40 gÀªÀgU É É £Á£ÀÄ CªÀ£À ªÀÄÄRªÀ£Éßà £ÉÆÃrgÀ°¯Áè CzÀgÀ ¥ÀƪÀðzÀ°è £À£UÀ É JA¢UÀÆ DvÀ£À ¨ÉnÖAiÀiÁV®è ªÀÄvÀÄÛ 02.03.2009 gÀAzÀÄ ¸ÁAiÀÄAPÁ® 5.40 gÀ ªÉüÉUÉ ¸Àzj À C«£ÁµÀ CgÀ½PÀnÖ FvÀ£ÀÄ »gÉèÁUÉêÁrAiÀÄ ªÀĺÁAvÉñÀ ªÀĺÁ°AUÀ UÉÆÃqÀUÃÉ j J£ÀÄߪÀª£ À À ¸ÀAUÀqÀ ¥Àu æ ÁªÀÄ nà ¸ÁÖ® ¨É¼ÀUÁ«AiÀÄ°èUÉ §AzÁUÀ ¸Àzj À à ªÀĺÁAvÉñÀ ªÀĺÁ°AUÀ UÉÆÃqÀUÃÉ j FvÀ£ÀÄ £À£ÀߣÀÄß vÉÆÃj¹ EªÀgÃÉ ¸À§¤Ã¸À vÉgÁpAiÀĪÀgÀÄ EgÀÄvÁÛgÉ CAvÁ CªÀ¤UÉ vÉÆÃj¹ vÀPÀët C«£ÁµÀ FvÀ£ÀÄ £À£Àß ±Ànð£À JqÀUÀqÉ eÉé£À°è 500 gÀÆ. ªÀÄÄR ¨É¯AÉ iÀÄ £ÉÆÃlÄUÀ¼£ À ÀÄß ºÁQzÀ£ÀÄ DUÀ £Á£ÀÄ ¸Àzj À £ÉÆÃlÄUÀ¼£À ÀÄß eÉé¤AzÀ -7- CRL.A No. 2646 of 2012 »A¢gÀÄV¸ÀĪÀÅzÀgÀµÀÖg° À è ¯ÉÆÃPÁAiÀÄÄPÀÛ ¹§âA¢AiÀĪÀgÀÄ §AzÀÄ £À£ÀߣÀÄß »rzÀÄPÉÆAqÀÄ SÉÆlÖ ¥ÀAZÀ£ÁªÀÄ §gÉzÀÄ £À¤ßAzÀ MvÁÛAiÀÄ ¥ÀªÀðPÀªÁV ºÉýPÉ §gÉzÀÄ PÉÆArzÁÝg.É DzÀPÁgÀt ¤gÀ¥ÀgÁ¢üAiÀiÁzÀ £À£ÀߣÀÄß C¥ÀgÁzsÀ¢AzÀ ªÀÄÄPÁÛAiÀÄUÉƽ¸À¨ÃÉ PÉAzÀÄ «£ÀAw ¥ÀƪÀðPÀ ¨ÉÃrPÉƼÀÄîvÉÛãÉ.
¨É¼U
À Á« DgÉÆæ
¢£ÁAPÀ: 24.02.2012"
8. On behalf of the accused, two witnesses have been examined as DWs.1 and 2. Among them, DW-1 is the friend and classmate of the accused who said that he had an occasion to meet the accused in the said hotel and it is the complainant who thrusted the money into the pocket of the accused. DW-2 also deposed almost on the same lines as that of DW-1.
9. On conclusion of the recording of the evidence of the prosecution and the defence, learned trial Judge heard the parties in detail and recorded a categorical finding that the prosecution is successful in establishing that there was a demand made by the accused to carry out work of the complainant pending with the accused by demanding a sum of Rs.3,000/- initially, and it was settled for a sum of Rs.2,000/--8- CRL.A No. 2646 of 2012
and accepted the same from the hands of the complainant as illegal gratification and thus convicted the accused for the aforesaid offences and sentenced the accused by sentencing the accused as under:-
"The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- in default simple imprisonment for a further period of three months for the offences punishable U/s 7 of the Prevention of Corruption Act, 1988.
The accused is further sentenced to undergo rigorous imprisonment for a period of one and half years and to pay fine of Rs.5,000/- in default simple imprisonment for a further period of three months for the offence punishable U/s 13 (1) (d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.
Both the sentences shall run concurrently.
The period of detention of accused in judicial custody, if any is set off against the sentences imposed against him U/s 428 of the Cr.P.C."
10. Being aggrieved by the same, the accused- appellant is before this Court.
11. In the appeal, following grounds have been raised.
That the Learned Special Judge failed to appreciate the fact that the Appellant had never seen the complainant and that the complainant along with his friend approached him in front of -9- CRL.A No. 2646 of 2012 Pranam Hotel wherein the friend of the complainant introduced the Appellant to the complainant and then complainant thrusted the amount forcibly in his shirt pocket and at that time he was trapped. Hence the judgment of the Special Judge is made without application of mind and is bad in the eye of law and is liable to be set-aside.
The Learned Judge failed to appreciate the fact that PW-2 i.e Complainant by taking undue advantage of the mental capacity of his brother Eranna, got executed the gift deed without the knowledge of his father by playing fraud on Eranna. Hence the Learned Special Judge came to the wrong conclusion and passed the impugned Judgment.
Further, the Learned Special Judge failed to note the fact that the amount was thrusted in the pocket of the Appellant after the Complainant was introduced to him by Mahantesh Godgeri. Hence looking from any angle the Appellant is proved to be innocent but, in spite of that with false assumption and presumption the trial Judge committed error and passed impugned Judgment.
The Learned Special Judge also failed to appreciate the evidence of DW-1 and DW-2 and their evidence corroborate each other and hence
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CRL.A No. 2646 of 2012 without application of mind the Learned Special Judge proceeded to pass the impugned Judgment.
There is absolutely no independent evidence about the demand of money and the documentary evidence cuts of the very roots of the allegation made against the Appellant.
The Learned Special Judge failed to see that no conviction can be based on the uncorroborated statements.
No material to establish payment if alleged amount in pursuant to alleged demand.
Since there is no valid sanction, the trial without valid sanction is a trial without Jurisdiction.
Viewed from any angle, the order of Judgment and conviction is perverse and illegal, since it is contrary to the evidence on record and the Trial Judge has drawn presumption on unproved facts based merely on conjuncture and surmises rather than evidence on record.
Viewed from any angle the order of Judgment of Conviction passed against the appellant cannot be sustained and the same calls for interference at the hands of this Hon'ble Court."
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CRL.A No. 2646 of 2012
12. Learned counsel for the appellant Sri B.S.Sangati reiterating the above grounds contended that the prosecution has utterly failed to make out any case whatsoever as against the accused and the prosecution witnesses are unreliable witnesses as they are government servants and they have supported the case of the prosecution under the fear and further action against them. Therefore, the prosecution case suffers for want of independent evidence and the alleged trap is a motivated trap and the appellant has not at all handled the tainted currency notes and despite the same, a concocted trap mahazar has been drafted by the investigation agency and thus sought for allowing the appeal.
13. He further contended that the oral evidence of DWs.1 and 2 clearly shows that the tainted currency was thrusted into the shirt pocket of the accused and accused has not at all handled the tainted currency and there was no necessity of accepting the money from the complainant either by the accused and therefore, entire prosecution case suffers for want of legal evidence and thus sought for allowing the appeal.
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CRL.A No. 2646 of 2012
14. In support of his arguments, learned counsel for the appellant has relied on the following judgments rendered by the coordinate benches of this Court.
1. 2022(1) KCCR 722 in the case of Sri Krishnamurthy V/s State by Lokayukta Police.
2. Criminal Appeal No.165/2010 (Dr.S.R.Chowdaih V/s State of Karnataka by Lokayukta Police.
3. 2007(4) KLJ 138 in the case of State of Karnataka V/s A.V.Satish.
15. Per contra, Sri Anil Kale, learned counsel representing the Lokayukta contended that the complainant, shadow witness and other circumstantial witnesses have supported the case of the prosecution, there is a legal evidence available on record to support the finding recorded by the learned trial Judge and thus sought for dismissal of the appeal.
16. He further contended that the case of the accused is that the money has been thrusted into his shirt pocket is disbelieved by the learned trial Judge by recording a cogent and convincing reason in para 12 of the impugned judgment
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CRL.A No. 2646 of 2012 and the same is based on sound and logical reasons. He also contended that the material evidence on record has been properly appreciated at para 19 by the learned trial Judge while passing the impugned judgment.
17. He also contended that the oral testimony of DWs.1 and 2 are nothing but self-serving testimony and the same has been established by the prosecution that they are implanted witnesses.
18. He further contended that in respect of the work pending with the accused, the accused initially demanded a sum of Rs.3,000/- as illegal gratification, later on it was freezed to a sum of Rs.2,000/- by bargain. But, the complainant was not interested in parting with that sum of Rs.2,000/- and therefore, he approached the Lokayukta Police and based on the said complaint, the accused has been successfully trapped and colour test stood positive, and thereby, the prosecution has been successful in establishing all ingredients to attract the aforesaid offences and thus sought for dismissal of the appeal.
19. He further argued that there cannot be any dispute as to the legal principles enunciated in the decisions relied on
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CRL.A No. 2646 of 2012 by the learned counsel for the appellant, but the facts of each has to be looked into and the protocol to establish offence under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act envisages that panchas, just because they are government servants, their evidence cannot be ignored in toto unless the appellant makes out a case that the oral testimony of the official witnesses has caused serious prejudice and there is a previous animosity nurtured by the official witnesses against the appellant herein and thus sought for dismissal of the appeal.
20. In the light of the rival contentions, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration.
(1) Whether the prosecution is successful in establishing all the ingredients to attract the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act?
(2) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference by this Court?
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CRL.A No. 2646 of 2012
(3) Whether the sentence is excessive?
21. In the case on hand, in order to establish the case of the prosecution 12 witnesses have been examined. Among 12 witnesses, PW2 is the complainant who deposed in line with the complaint averments and also specifically deposed about the handing over of the tainted currency notes on demand made by the accused in Pranam Hotel at Belagavi on the day of trap. He further deposed that in respect of the application filed by him seeking transfer of revenue entries, the accused initially demanded a sum of Rs.3,000/- as illegal gratification, later on it was settled for a sum of Rs.2,000/- for that also, he was not interested to part away with and therefore he approached the Lokayukta Police.
22. He withstood the detailed searching cross- examination made on behalf of the accused and specifically denied the suggestion that he has filed a false complaint against the appellant. Shadow witness is examined as PW6. He also supported the case of the prosecution by deposing before the Court in respect of the contents of entrustment/ experimental mahazar and also trap mahazar. In his cross- examination also suggestions made to him that - "tainted
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CRL.A No. 2646 of 2012 money was thrusted into the pocket of the accused is denied by him". No useful material is elicited in the cross-examination of PW6 so as to disbelieve his oral testimony nor to establish that he nurtured his previous enmity or animosity as against the accused so as to depose falsely against the accused is concerned. The co-pancha is examined as PW7. He deposed about the entrustment mahazar and reaching the place of incident soon after the pre-designated signal is obtained by the raid party and having witnessed the tainted money seized from the shirt pocket of the accused at Pranam Hotel.
23. The other prosecution witnesses have also supported the case of the prosecution. PW.5 is the sanctioning authority who has perused the materials collected by the investigating officer and issued the sanction to prosecute. On perusal of the material on record, there is no serious dispute in regard to the sanction.
24. Head of the raid party Sri R.K.Patil is examined as PW.12. He deposed about the receipt of the complaint and arranging for trap, entrustment mahazar, trap mahazar,
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CRL.A No. 2646 of 2012 conducting the investigation and filed the charge sheet against the petitioner.
25. On behalf of the accused, two witnesses have been examined as DWs.1 and 2. DW.1 deposed before the Court that he is the friend and classmate of the accused at Navalgund at the School level. He has stated that on 02.03.2009, he has seen the accused for the last time, on that day in the Tahasildar office at about 4.45. p.m., he had met the accused. Since after a long time, they met each other, they went to Pranam Hotel for consuming tea, at that juncture, one stranger came to the place where the accused and himself were sitting, he thrusted three or four currency notes of Rs.500/- denomination into the shirt pocket of the accused. At that juncture about 4 to 5 persons immediately came and introduced themselves as they are Lokayukta Police and took the accused to their custody. In his cross-examination, it is elicited that he is B.A graduate and he is permanent resident of Belagavi and accused is permanent resident of Belagavi and does not know the address of the accused nor the location of his house. DW.1 admits that he works in the VRL office of Belagavi and his working hours is morning 9.30 a.m. to evening
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CRL.A No. 2646 of 2012 8.30 p.m. It is also elicited in his cross-examination that, he has no document to show that as on the date of incident, he has been deputed to the work of release of the seized vehicle.
26. DW.2 is one Mahantesh Mahaling Godageri. He deposed before the Court that accused is working as a Village Accountant in the Hirebagewadi village and therefore, he has acquaintance with him. On 02.03.2009 he had visited the Belagavi and at that juncture, his friend one Avinash Haralikatti contacted him and asked him to come to Belagavi. Accordingly, at about 2.00 p.m., DW.2 accompanied the complainant. At about 4.30 p.m he had visited the Zilla Panchayath office along with the complainant. At that juncture another person came there and all of them visited the Tahasildar office. Thereafter words, he has visited the Pranam Hotel and he was consuming tea. At that juncture he introduced the complainant to the accused and at that juncture all of a sudden complainant thrusted currency notes of Rs.500/- denomination into the shirt pocket of the accused and at that juncture 5 to 6 people came there and introduced themselves as Lokayukta Police and arrested the accused. In his cross-examination he admits that, there is a printing press in the neighboring place of his house
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CRL.A No. 2646 of 2012 i.e., Nagendra Printing Press and the accused contacted him through landline phone of the said printing press and he does not know the number of the said landline phone.
27. The above evidence on record is sought to be re- appreciated for the purpose of allowing the appeal.
28. In the case on hand, the complainant, the shadow witnesses and other material witnesses including the head of the raid party have supported the case of the prosecution. The complainant while deposing before the Court reiterated the contents of the complaint in toto. He also supported the case of the prosecution by deposing about the contents of the experimental mahazar as well as the trap mahazar. The suggestion made to the prosecution witnesses so also, the shadow witnesses has supported the case of the prosecution.
29. In order to establish the ingredients to attract the offences under Sections 7 and 13(1)(d) read with section 13(2) of the P.C.Act, the prosecution has to prove the charges leveled against him beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is
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CRL.A No. 2646 of 2012 established otherwise by proper proof of demand and acceptance of the illegal gratification.
30. With the above legal requirement, if the material on record is appreciated, the work of the complainant was pending with the accused in as much as he had filed an application seeking transfer of entries based on the registered gift deed which was executed by his elder brother to the extent of 1 acre 24 guntas in respect of land bearing Sy.No.401/2 of Hirebagewadi Village.
31. In that regard, when he contacted the accused, he initially made a demand of Rs.3,000/- as illegal gratification, which was negotiated by the complainant and it was fixed at sum of Rs.2,000/-. The complainant was not at all interested in paying the said amount to the accused and therefore he contacted the Lokayukta Police.
32. It is pertinent to note that the head of the raid party or the panch witnesses did not nurture previous enmity or animosity against the accused and they are law abiding citizens and they have discharged their work as is required under law.
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CRL.A No. 2646 of 2012 The protocol in laying a trap requires that the presence of two independent witnesses preferably Government Servants.
33. In the case on hand shadow witness and the co- pancha are the Government Servants, there is no dispute in this regard.
34. The materials on record clearly show that when the complainant visited the office of the accused on the day of the trap, it was intimated to the complainant that he has visited Hirebagewadi village. Therefore, entire trap party proceeds to the Hirebagewadi but by the time they reached the Hirebagewadi, the accused had returned to Belagavi. Accordingly the raid party again returns to the Belagavi and they contacted the accused. At that juncture, accused told the complainant to visit him in Pranam Hotel. Accordingly, the complainant and the shadow witness visited the Pranam Hotel, wherein on demand made by the complainant handed over the tainted money to the hands of the accused which he counted and kept in the shirt pocket, as could be seen from the trap mahazar. However, the contention taken by the accused is that the currency notes were thrusted into the pocket of the
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CRL.A No. 2646 of 2012 accused. This stand is taken by the accused by cross-examining PW.2 and so also the similar evidence is found in DW.1 and oral testimony of DWs.1 & 2. The learned Trial Judge while considering the said aspect of the matter in paragraph No.19, held as under:
"19. Further it is suggested to this witness that on 2/3/2009 from 9.00 am., to 5.00 p.m., accused was in Hirebagewadi itself for distribution of ration cards. But the said suggestion is not supported by any cogent evidence. A suggestion was made to this witness that on 2/3/2009 evening at 500 pm., along with his friend he approached the accused and without demand thrusted the amount in the shirt pocket of accused and at that time the Lokayukta officials came there and apprehended the accused. But the said suggestion came to be denied. This part of the cross- examination of PW.2 on page No.8 reads as under :
"DgÉÆævÀ£ÀÄ £À¤ßAzÀ AiÀiÁªÀÅzÉà ºÀt PÉüÀ¢zÀÝgÀÆ ¸À»vÀ £Á£ÀÄ CªÀ£À eÉé£À°è ºÀt EmÉÖ£ÀÄ JAzÀÄ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. D ¸ÀªÀÄAiÀÄzÀ°è ¯ÉÆÃPÁAiÀÄÄPÀÛ C¢üPÁjUÀ¼ÀÄ §AzÀÄ C¥Á¢vÀ£À PÉÊUÀ¼£ À ÀÄß UÀnÖAiÀiÁV »rzÀÄPÉÆAqÀgÀÄ JAzÀÄ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
If this version is accepted then it is to be noted here that immediately after thrusting the amount
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CRL.A No. 2646 of 2012 the hands of accused were held by Lokayukta officials. But it is to be noted here that hand wash of accused has also shown positive to phenolphthalein test. If at all accused had not touched the amount then no explanation is forthcoming as to what was the reason for the hand wash of accused showing positive to phenolphthalein test. Further during the cross- examination of PW.2 no suggestion was made as to who was his friend, who accompanied him so as to introduce the accused or identifying the accused. Hence, it is evidence that in the cross-examination the evidence of PW.2 is not at all shaken."
35. As could be seen from the above reasoning recorded by the Trial Judge, it is highly impossible that if the colour test would not turn positive unless the accused has handled the tainted currency notes. Therefore, the contention taken on behalf of the accused that the money was thrusted into the shirt pocket of the accused cannot be countenanced in law. Further, in the absence of previous enmity or animosity nurtured by the complainant against the accused, why would he thrust the money into the shirt pocket of the accused so as to falsely implicate him in the case cannot be countenanced in law. Further in the written submission given by the accused
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CRL.A No. 2646 of 2012 under Section 313(5) of Cr.P.C, he has specifically taken a contention that the complainant is total stranger and in fact he was introduced by DW.2 to him for the first time in Hotel Pranam at Belagavi. When such being the stand that has been taken by the accused, why would a stranger directly thrust the tainted currency notes into the shirt pocket of the accused, which remained unexplained by the accused, and therefore, such contention cannot be countenanced in law.
36. When the defence that has been taken by the accused to explain as to how the incident has occurred, having regard to the fact that the complainant and shadow witnesses have categorically spoken about the demand and acceptance of the tainted money by the accused, the prosecution would definitely enjoy the presumption available to it under the provisions of the Act and such presumption is sought to be rebutted by the accused and if he failed to do so, this Court has not find any legal infirmity whatsoever in reaching out a finding by the Trial Court that, the prosecution is successful in establishing all the ingredients, required to convict the accused under the provisions for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act.
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CRL.A No. 2646 of 2012
37. As rightly contended by the learned counsel for the Lokayukta Sri Anil Kale there cannot be any dispute whatsoever as to the principles of law enunciated in the judgments relied on by the learned counsel for the petitioner rendered by the co- ordinate Benches of this Court. In the first place, the facts of this case being altogether different from the facts involved in the decisions relied on by the learned counsel for the petitioner the same has no application whatsoever. Further the order passed by the co-ordinate Bench wound not bind while appreciating the case on hand.
38. In the case on hand, the accused has taken up the responsibility to establish a case by himself that the money was thrusted into the shirt pocket of the accused and such was not the factual aspect in the cases relied on by the learned counsel for the appellant. In the case on hand, just because PWs.6 and 7 being the Government Servants alone, their testimony cannot be doubted by relying on the judgment rendered by this Court in the case of Dr.S.R.Chowdaiah Vs. The State of Karnataka by Lokayukta Police in Crl.A.No.165/2010 disposed of on 09.07.2015. Suffice to say that, viewed from any angle the grounds urged on behalf of the appellant are
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CRL.A No. 2646 of 2012 hardly sufficient to interfere with the well reasoned finding recorded by the learned Trial Judge.
39. As such, following the dictum of the Hon'ble Apex court in the case of A. Subair Vs. State of Kerala reported in (2009) 6 SCC 587, this court is of the considered opinion that as no other points are urged on behalf of the appellant to hold that the impugned judgment is suffering from legal infirmity and perversity. Accordingly, Point No.1 is answered in the affirmative and Point No.2 in the negative.
40. Regarding point No.3 :- The learned Trial Judge has convicted the accused and passed an order of sentence as referred to supra. In the absence of any mitigating circumstances placed before this Court, this Court does not find any reason whatsoever to interfere with the sentence ordered by the learned Trial Judge. Accordingly, the point No.3 is answered in the negative and following order is passed.
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CRL.A No. 2646 of 2012 ORDER The appeal is dismissed.
The appellant is directed to surrender before the Trial Court for serving the sentence on or before 25.06.2022.
Office is directed to return the Trial Court records with the copy of this order forthwith.
Sd/-
JUDGE CLK/EM