Karnataka High Court
The State Of Karnataka By vs Dr R Venkatesh S/O Raju on 18 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.453/2011
BETWEEN:
THE STATE OF KARNATAKA BY
KARNATAKA LOKAYUKTHA POLICE INSPECTOR
TUMKUR DISTRICT, TUMKUR
....APPELLANT
(BY SRI. B.S. PRASAD, ADVOCATE)
AND:
DR. R. VENKATESH
S/O RAJU
AGED ABOUT 38 YEARS
MEDICAL OFFICER,
P.P.C. DISTRICT HOSPITAL
TUMKUR
PRESENT ADDRESS:
MEDICAL OFFICER, GOVT. HOSPITAL
SOMWARPET, KODAGU DISTRICT
.... RESPONDENT
(BY SRI. A.H. BHAGAVAN, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3)
OF CR.P.C. BY THE STATE PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER
DATED:14.12.2010 PASSED BY THE LEARNED SPECIAL
JUDGE, TUMKURU IN SPL.CASE No.55/2002 ACQUITTING
THE RESPONDENT-ACCUSED OF THE OFFENCES
PUNISHABLE U/S 7, 13(1)(d) R/W 13(2) OF THE
PREVENTION OF CORRUPTION ACT, 1988.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.01.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The State through Lokayukta Police has submitted this appeal under Section 378(1) & (3) of Cr.P.C. challenging the judgment and order of acquittal dated 14.12.2010 passed by the Principal Sessions Judge, Tumakuru, in Special Case No.55/2002.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
3. The brief facts of the prosecution case are that, the complainant Sri.V.H. Nagarajaiah is a public servant and his wife Ramamani has delivered the second child on 13.07.2001 at Pragathi Nursing Home, Tumakuru and Dr. Anasuya of the said hospital has performed vasectomy surgery to his wife Ramamani on the same day. The complainant Sri. V.H. Nagarajaiah 3 required a certificate regarding his wife undergoing vasectomy operation for getting special increment and submitted an application for issuance of necessary certificate as per Ex.P2 addressed to the District Surgeon and along with said application, he has also produced the certificate issued by Dr. Anusuya pertaining to his wife Smt. Ramamani, for having underwent vasectomy operation. The complainant got information that the accused was the Medical Officer, who would process the said certificate and on the same day he met the accused and requested for issuance of the certificate. Then the accused has demanded bribe and initially the accused demanded Rs.2,000/- for issuance of Family Planning Certificate and later on settled it for Rs.500/-. As the complainant was not inclined to pay bribe, he lodged a complaint as per Ex.P4 before Lokayukta Police, Tumakuru on 31.08.2001 at 9.30 am. In pursuance of the said complaint, a case was registered against the accused and a trap was set-up. Two Government Servants were 4 secured as panchas and the complainant has produced Rs.500/- to be paid as bribe to accused and after drawing an entrustment mahazar, the complainant and shadow witnesses have approached accused in the office of the accused and the accused was trapped while he demanding and accepting bribe of Rs.500/-. In this regard, accused was arrested and his hand-wash was taken, which turned into pink colour and tainted amount was also recovered. Then after obtaining necessary sanction and after concluding investigation, the Investigating Officer has submitted the charge sheet under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 ('PC Act' for short). Accused was produced before the Special Court and was enlarged on bail.
4. Cognizance was taken by the learned Special Judge and accused has appeared in pursuance of summons and he was furnished with the copies of prosecution papers.
5
5. After hearing the learned counsels appearing for the parties on both sides, the learned Special Judge has framed charges against accused for the offences under Sections 7, 13(1)(d) r/w. 13(2) of P.C. Act. Accused pleaded not guilty and claimed to be tried.
6. The prosecution has examined in all seven witnesses as PW.1 to PW.7 and also got marked Eighteen documents as Ex.P1 to Ex.P18 and Nine material objects were also got marked as MOs. 1 to 9, in evidence.
7. After conclusion of evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded to enable accused to explain incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial and he has given statement submitting that, he is not the authority to issue the certificate and neither he had motive to demand bribe nor he has accepted bribe. He also lead the evidence of DW.1 in support of his 6 defence. Then the learned Special Judge heard the arguments advanced by the counsels appearing on both sides and has come to a conclusion that there is no proper sanction for prosecution and also answered the other points in negative regarding demand and acceptance of bribe and recovery of tainted amount and thereby acquitted the accused for charges levelled against him. Being aggrieved by this judgment of acquittal, the State, through Lokayukta Police, has submitted this appeal.
8. Heard learned counsel for the appellant and the learned HCGP appearing for the Respondent-State. Perused the records.
9. Learned counsel for the appellant-Lokayukta Police would contend that the evidence of both complainant and shadow witness is supported by other material evidence and their evidence establish demand and acceptance of bribe. He would also contend that the tainted amount was also recovered from the custody 7 of accused and the presumption under Section 20 of P.C. Act is in favour of the complainant. He would also contend that nothing was elicited during cross- examination of witnesses and the trial Court has unnecessarily given importance to minor discrepancies which are bound to occur due to lapse of time and erroneously held that, there was no demand and acceptance of bribe and the amount was not recovered. He would also contend that, the Sanctioning Authority is the Minister of Department of Health and Family Welfare along with Secretary and they have applied their mind and the learned Special Judge has erroneously held that there is no application of mind without appreciating the evidence on record. He would further contend that, Sanctioning Authority is required to look into prima facie case only and the evidence of PW.2 to establish that there is prima facie case. The entire approach of the learned Special Judge is erroneous and it has led to perversity as well as miscarriage of justice. He would also contend that the Family Planning Certificate was 8 recovered from accused and there is material evidence to show that the accused has demanded and accepted bribe being a public servant and hence, he would contend that the trial Court is not justified in acquitting accused and it has led to miscarriage of justice and as such, he would seek for setting aside the impugned judgment and order of acquittal.
10. Per contra, the learned counsel for the respondent/accused would support the judgment of the trial Court and contend that the accused is not the authority to issue Certificate and the application is also not addressed to him and he is the only verifying authority. He would also contend that the application was submitted to the District Surgeon and the certificate was not recovered from the custody of the accused, but, it was produced by one Smt. Deviramma. He would also contend that the evidence of PW.2 (Complainant) and PW.3 (shadow witness) as well as the 2nd Panch are inconsistent with each other regarding drawing mahazar in Lokayukta office, which completely 9 demolish the case of the prosecution. He would also contend that there was no verbal demand and the evidence discloses that there was only a demand by gesture and though the trap is alleged to have been held in the office of the accused, but the proceedings were drawn in Lokayukta office, which creates suspicion over the entire case of the prosecution. Hence, he would contend that, considering all these aspects, the trial Court is justified in acquitting the accused and the view taken by the trial Court is also a possible view and there is no material evidence to prove the demand and acceptance, so as to draw a presumption. Hence, he would contend that the judgment of acquittal passed by the trial Court does not call for any interference and prayed for dismissal of appeal.
11. After having heard the arguments and after perusing the oral and documentary evidence in the form of records of the trial court, the following points would arise for consideration:-
10
i) Whether the sanction order issued is invalid?
ii) Whether the judgment of acquittal passed
by the Special Judge is perverse,
erroneous and arbitrary so as to call for interference by this Court?
12. As per Section 19 of the P.C. Act, before taking cognizance, a pre-requisite sanction is mandatory. PW.4 is Under Secretary to Government, Health and Family Welfare Department and he issued Ex.P7-Sanction Order against the accused. It is to be noted here that, he is not the author of the sanction order, but he has only issued the same on behalf of the department in the name of His Excellency, the Governor of Karnataka. His evidence also disclosed that, the file was put-up with details along with trap mahazar, copy of the complaint etc. and sent for approval to the Chief Secretary, who approved the note for issuing sanction and same was forwarded to the Minister, who accorded permission in the original file. On the basis of the said permission, PW.4 has simply issued Sanction Order in 11 the name of the Governor. Very interestingly the learned Special Judge has given unnecessary importance to the cross-examination of PW.2 wherein, he has admitted that, in trap mahazar, there was no demand. This is an erroneous observation on the part of the learned Special Judge, as the trap mahazar as per Ex.P6 clearly establish that, there was a demand, but there was no verbal demand, and the demand was by sign i.e., by rubbing thump to the forefinger. In pursuance of the sign of the accused, it is recorded that the complainant has paid bribe amount and the same was received by the accused. Hence, the very observation of the trial Court/Special Judge that, 'there is no application of mind by the Sanctioning Authority', holds no water. The citations relied in this regard by the trial Court have no applicability, as there is specific reference in the trap mahazar, the complaint and Sanction Order-Ex.P7 regarding demand. Further, in Ex.P7 every thing is discussed in detail including the documents submitted for verification. Apart from that, 12 the Sanctioning Authority cannot discuss the same so as to ascertain whether the case is going to end in conviction or not and if there is a prima facie case, the Sanctioning Authority is bound to consider the case and issue Sanction. But, all these aspects were over-looked by the Special Judge in a mechanical way without application of mind and without verifying the sanction order as well as contents of the trap mahazar, and has observed that there is invalid sanction, which is an erroneous finding. The sanction is a valid sanction as per Ex.P7 and the observation and finding of the trial Court in this regard are perverse and arbitrary. Under these circumstances, I answer the first point under consideration, in negative.
13. Now coming to other part i.e, the demand and acceptance of the bribe, the prosecution has mainly relied on the evidence of PW.2 (complainant) and PW.3 (shadow witness) as they are material witnesses. The complainant has specifically deposed regarding he approaching the accused and there was a demand and 13 acceptance bribe by the accused through a sign but not verbally and PW.3 has supported this version. The Special Judge carried away with the fact that there was no verbal demand. There is no specific law that the demand should be only by verbal. There are various modes of demand for bribe and looking to the circumstances of the case, the court is required to draw an inference as to whether there was a demand and acceptance. Apart from that, the amount was also recovered from the custody of the accused and it is for the accused to explain as to under what circumstances the amount was found in his custody. But, the statement recorded under Section 313 of Cr.PC. does not explain anything in this regard. Learned counsel for the respondent contended that, mere recovery of tainted amount itself is not sufficient to convict the accused, unless there is demand and acceptance of bribe. In this context, he placed reliance on Head Note- A of the decision reported in (2021) 2 SCC (Crl) 515 [N. Vijayakumar Vs. State of Tamil Nadu]. On the 14 same principal, he further placed reliance on the decisions reported in following cases:
1. (2009) 2 SCC (Crl) 1 [C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala];
2. AIR 2007 SC 489 [V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P];
3. (2016) 3 SCC (Crl.) 316 [T.K. Ramesh Kumar Vs. State];
4. 1979 CRL.L.J. 1087:AIR 1979 SC 1408 [ Suraj Mal Vs. The State ( Delhi Administration)];
5. ILR 2010 KAR 983 [State of Karnataka, Through Police Inspector, Bureau of Investigation Vs. Anand Gururao Deshpnde].
On the basis of these citations, learned counsel would contend that, mere recovery of tainted amount from accused cannot be treated as substantial evidence in the absence of proof of demand and acceptance. But, none of these citations are relied in Full Bench decision of the Hon'ble Apex Court reported in AIR 1964 SC 375 [Dhanvatari Balwantrai Desai Vs. State of Maharahtra], wherein it is observed as under:-
"Prevention of Corruption Act (2 of 1947), S.4(1) - Accused shown to have accepted 15 money which was not legal remuneration - Presumption can be raised - Rebuttal must be by explanation which must be true and not merely plausible - Presumption under S.4(1) and Evidence Act S.114, distinction between- Whether presumption is rebutted, is question of fact- Supreme Court will not interfere, Constitution of India, Art.136-Evidence Act (1 of 1972), S.114 - Penal Code (45 of 1860), S.161
-"
14. Hence, the Hon'ble Apex Court in 1964 itself has laid down a law that, when it is shown that the accused has received or accepted sum of money, which is not legal remuneration, presumption must be raised and rebuttal must be by an explanation, which must be true and not mere plausible. As such, once it is established that the amount was recovered from the custody of the accused, which is not a legal remuneration, drawing of presumption in that regard becomes mandatory. All citations referred by the learned counsel for respondent do not refer to the decision of the Full Bench and the case law discussed in the decision of Dhanwantari Balwantrai Desai's case 16 was not at all discussed in any of these subsequent decisions. Hence, in view of the Four Judges' Bench decision of 1964 (supra), the subsequent decisions cannot be made applicable and the said principles were not brought to the notice of the Hon'ble Apex Court in those decisions including Three Judges Bench decision reported in Vijayakumar's case (supra). Hence, as per the decision of Dhanwantari Balwanrai Desai's case, if it is established that the amount was recovered from the custody of the accused, which is not a legal remuneration, the presumption under Section 20 of the P.C. Act must be drawn and the accused is required to rebut the said presumption on the basis of preponderance of probability. However, at the same time, it is necessary to consider other portion of the evidence as to whether presumption under Section 20 can be drawn regarding recovery of the amount from the custody of the accused.
15. No doubt, PW.2 and PW.3 have supported the case of the prosecution. But, further they have 17 specifically deposed regarding demand by showing signs by rubbing thumb to fore-finger. However, it is important to note here that the trap was held in the office of accused. The evidence of PW.2 and PW.3 also disclose that, there were some other persons when the trap was laid. But, the Investigating Officer did not record the statement of independent witnesses. Further, all along it is the case of the prosecution that trap mahazar was prepared in the office of the accused. But, PW.2 (complainant) in his examination-in-chief itself has specifically deposed that, by 12.45 p.m., after all the formalities, they returned to Lokayukta office, wherein trap mahazar was drawn and they signed on it. This statement is fatal to the case of the prosecution. No doubt in his cross-examination, PW.2 tried to cover up this statement by saying that, he has given a false evidence in his examination in chief regarding trap mahazar drawn in Lokayukta office. But, very interestingly, the trap witness was not treated as hostile for stating that the trap was drawn in Lokayukta office. 18 Again this evidence is corroborated by the evidence of PW.3, who is a shadow witness.
16. PW.3 in examination in chief has deposed that seizure panchnama ie., Ex.P6 was prepared in the office of the accused for 2 to 3 hours from 12.30 p.m. and he has attested the said panchanama. In the cross- examination, he admitted that he has put his signature on the trap mahazar in the office of Lokayukta. This clearly establish that the shadow witness did not say anything about the complainant putting his signature on the trap mahazar on the spot. The further cross- examination of PW.3 discloses that, there were 1 or 2 nurses present in the said room and his statement was recorded in Lokayukta Police office and he signed it.
17. It is also the case of the prosecution that the Family Planning Certificate was handed over by the accused from his Almairah. PW.2 and PW.3 have also deposed to this effect. But, PW.6 the other mahazar witness, who has turned hostile deposed contrary. No 19 doubt his evidence is not relevant for demand and acceptance, but considering the admissions given by PW.2 and PW.3 regarding drawing mahazar at Lokayukta office, the evidence of PW.6 assumes more importance, as he has specifically deposed that a Nurse by name Smt. Deveeramma brought the Family Planning Certificate and produced it. He has specifically stated that mahazar was drawn in Lokayukta office. Though this witness was treated as hostile, in the entire cross-examination by the learned Special P.P., there was no denial of this aspect and there was no suggestion that, 'mahazar was drawn in the office of the accused itself'. Further, statement of this witness that one Smt. Deveeramma has produced the Family Planning Certificate is also not changed in the cross- examination by the learned Special PP. In the cross- examination PW.6 has specifically deposed that both panchanams were prepared together in Lokayukta office. Further, his evidence disclose that the amount was lying on the table and as per the instructions by the 20 Investigating Officer, the accused picked-up the amount and handed-over it to the Investigating Officer. In the cross-examination also he has specifically deposed that, mahazar was drawn in Lokayukta office itself. Further, the Investigating Officer has specifically stated that, there was an Almairah in the office of the accused and from which the accused has removed the Family Planning Certificate and produced it. On perusal of the sketch (Ex.P1), existence of Almairah is not at all shown. It is the contention of the accused that the complainant has thrusted the amount in his hand. Though the accused has failed to substantiate this contention, the initial burden is on the prosecution to establish that the trap mahazar was drawn at the spot. But, in the instant case, the evidence disclose that the trap mahazar was drawn in Lokayukta office and no proper explanation is forthcoming in this regard. Further, the accused has got examined one witness, who was Second Division Assistant (SDA), who deposed that accused is not competent person to issue Family 21 Planning Certificate and the District Surgeon is the competent person and the accused is only a counter signing authority. Further, Ex.P2 discloses that, it is directed to District Surgeon and not to the accused. Ex.P3 discloses that both accused and the District Surgeon have also signed on it. The evidence disclose that one Smt. Deveeramma has produced the Family Planning Certificate and though the prosecution alleged that it was recovered from the custody of the accused, the same is not substantiated. Looking to these lapses and considering the fact that the trap mahazar was also not all drawn at the spot ie., in the office of the accused, but it was drawn in Lokayukta office, a serious doubt would arise regarding genuineness of the case of the prosecution. Under such circumstances, presumption under Section 20 of the PC Act cannot be drawn.
18. Learned counsel for the respondent would further contend that, when the view taken by the trial Court is also a possible view, considering the 22 contradictions in the evidence of three witnesses and unexplained lacuna on the part of the prosecution, the said view cannot be disturbed. In support of his contention, he placed reliance on a decision reported in (2021) 2 SCC (Crl) 515 (supra) (Head Note-D), which reads as under:
"D. Public Accountability, Vigilance and Prevention of Corruption-Prevention of Corruption Act, 1988-Ss. 7, 13(2) and 13(1)(d)-Acquittal-Reversal by High Court- Same held not justified, when view taken by trial Court found to be a possible view after considering contradiction in evidence of key witnesses and unexplained delay in conducting phenolphthalein test"
19. The learned counsel also placed reliance on a decision reported in 2012 Crl.L.J. 4388 (SC) [K. Venkateshwarluy Vs. State of Andhra Pradesh] (Head Note-A), wherein it is observed as under:
"(A) Criminal P.C.(2 of 1974), S.378-
Appeal against acquittal-Interference-Not to be only because other view is possible-For 23 interference order under appeal has to be perverse.
If the view taken by the trial Court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral consideration (Para5)."
Hence, unless prosecution establishes that, the order of acquittal is totally perverse against the weightage of evidence, rendering incomplete breach of 24 settled principles underlying criminal jurisprudence, no interference is called for.
20. In the instant case, as stated above, there is inconsistent evidence regarding place of drawing trap mahazar and production of Ex.P3 (Family Planning Certificate). Hence, in view of this contradictory evidence, the view taken by the trial Court cannot be said to be perverse or erroneous. The said principles are directly applicable to the case in hand. On this point itself, the learned counsel for the appellant has further placed reliance on the following decisions:
1) (2011) 2 SCC (Crl.) 375 [Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra]
2) (2007) 1 SCC (Crl) 113 [Samghaji Hariba Patil Vs. State of Karnataka]
3) 2013) 3 SCC (Crl.) 289 [S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka]
4) (2005) SCC (Crl.)1252 [Ayodhya Singh Vs. State of Bihar and others] Hence, in view of the principles enunciated in the above said decisions, when the view taken by the trial 25 Court is found to be a possible view on the basis of appreciation of the evidence on record, the same shall not be disturbed. Further, it is also observed that presumption on 'Innocence of accused' being a preliminary factor, in the absence of exceptional and compelling circumstances and perversity of the judgment of acquittal, it is not open to the Appellate Court to interfere with the judgment of acquittal passed by the trial Court in a routine manner. The Hon'ble Apex Court has further laid down the law that, the High Court should not ordinarily reverse the judgment of acquittal when two views are possible. The principles enunciated in the above cited decisions are directly applicable to the case in hand. In the instant case, the evidence of PW.2, PW.3 and PW.6 does not support the case of the prosecution as regards production of Ex.P3-Family Planning Certificate by accused and drawing of mahazar at the spot and it completely falsify the case of the prosecution. If at all the mahazar is drawn at Lokayukta Office, when the trap was laid down in the 26 office of the accused, it is for the prosecution to explain as to why the mahazar was drawn in Lokayuktha office. As per the case of the prosecution, mahazar was drawn at the spot itself, but the evidence speaks a different story. If that is taken into consideration, then the entire case of the prosecution regarding demand and acceptance becomes doubtful.
21. Under these circumstances, though the trial Court has erred in considering the demand, acceptance and sanction, however, the trial Court is justified in acquitting the accused considering the inconsistent evidence of PWs.2, 3 and 6 in this regard. Therefore, looking to facts and circumstances of the case, the judgment of acquittal passed by the trial Court does not call for any interference by this Court, as the view taken by trial Court is also a possible view. Accordingly, in view of the above discussions, at no stretch of imagination, it can be said that the judgment of the trial Court is perverse or arbitrary so as to call for any interference by this Court. Accordingly, the point No.2 27 under consideration is answered in negative and as such, I proceed to pass the following:-
ORDER The appeal is dismissed. The judgment and order of acquittal dated 14.12.2010 passed by the Principal Sessions Judge, Tumakuru, in Special Case No.55/2002, is hereby confirmed.
Sd/-
JUDGE KGR*