Karnataka High Court
S.M.Vijayakumar S/O Mariyappa vs The State Of Karnataka By Police ... on 19 February, 2015
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2015
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.764/2009
C/W
CRIMINAL APPEAL NO.284/2010
IN CRIMINAL APPEAL NO.764/2009
BETWEEN:
S.M.VIJAYAKUMAR
S/O MARIYAPPA
AGED ABOUT 38 YEARS
REVENUE INSPECTOR
VIJAYAPURA CIRCLE,
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT. ...APPELLANT
(BY SRI M V DEVARAJU, SR. COUNSEL
A/W SRI N NAGARAJA, ADVS.
FOR M V DEVARAJU ASSTS.)
AND
THE STATE OF KARNATAKA
BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA
BANGALORE DIVISION
BANGALORE RURAL DISTRICT
REP. BY SPL. PUBLIC PROSECUTOR
FOR LOKAYUKTHA CASES
HIGH COURT BUILDING
BANGALORE. ...RESPONDENT
(BY SRI VENKATESH P DALWAI, SPL. P P )
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THIS CRL.A IS FILED U/S 374(2) CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION OF SENTENCE IMPOSED ON THE
APPELLANT IN SPECIAL CASE NO.63/04 DATED
8.9.2009 ON THE FILE OF THE PRINCIPAL SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE
AND ETC.
IN CRIMINAL APPEAL NO.284/2010
BETWEEN:
STATE BY LOKAYUKTHA POLICE
BANGALORE DIVISION
BANGALORE RURAL DISTRICT. ...APPELLANT
(BY SRI VENKATESH P DALWAI, SPL.P.P.)
AND
S M VIJAYAKUMAR
S/O MARIYAPPA
AGED ABOUT 38 YEARS
REVENUE INSPECTOR
VIJAYAPURA CIRCLE,
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT. ...RESPONDENT
(BY SRI M V DEVARAJU, SR. COUNSEL
A/W SRI N NAGARAJA, ADVS.
FOR M V DEVARAJU ASSTS.)
THIS CRL.A. IS FILED U/S.377 CR.P.C PRAYING
TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DT.8/9/2009 PASSED BY THE LEARNED
PRL. S.J. BANGALORE RURAL DIST., BANGALORE, IN
SPL.CASE NO.63/2004 THEREBY IMPOSING
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INADEQUATE SENTENCE FOR THE OFFENCES P/U/S 7
R/W 13(2) OF THE P.C. ACT.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Since these two appeals are arising out of the common judgment and since common questions of law and facts are involved in both the appeals, they have been taken up together to dispose of them by common judgment.
2. Crl.Appeal No.764/2009 is preferred by the appellant/accused being aggrieved by the judgment of conviction passed by the Prl.District & Sessions Judge, Bangalore Rural District in Spl.Case No.63/2004 dated 08.09.2009.
3. Crl.Appeal No.284/2010 is preferred by the appellant/complainant being aggrieved by the judgment and order of inadequate sentence dated 4 08.09.2009 passed by the Prl.District & Sessions Judge, Bangalore Rural District in Spl.Case No.63/2004.
4. The case of the prosecution in brief is that one Shamanna is the complainant in this case. It is alleged that complainant is a resident of Vijayapura Village of Devanahalli Taluk. Smt.M.Nagarathnamma is his elder sister. In Sy.No.287 of Vijayapura, property measuring 35X35 feet (site) stands in the name of his elder sister's husband's father viz., Chikkaveerappa. The said site is in possession of M.Nagrathnamma, her husband had died. She sought for change of katha in the year 2000. In this regard, an application was submitted to Tahsildar, Devanahalli. Thereafter, a surveyor has come from the office of the Tahsildar, prepared the sketch after inspecting the property. Then, for change of the katha, records were sent to the Revenue Inspector, Vijaykumar i.e., the accused. But the accused has 5 not transferred the katha and he was postponing the same. In this regard, complainant's elder sister has contacted the accused, even then her work was not done. So complainant's elder sister has given the GPA in favour of complainant. So he contacted the accused, requested to do the work of his sister. Then, the accused has demanded Rs.5,000/- for transfer of katha. But complainant explained that they are poor, they cannot pay Rs.5000/-. Finally, the accused has asked atleast to pay Rs.4000/- and to pay the said amount on 01.08.2002 at the residence or at the office of the accused and promised to change the katha. As the complainant was not interested to pay the bribe amount to the accused, he approached the Lokayukta Police and lodged the complaint dated 31.07.2002 as per Ex.P-1.
5. It is also the case of the prosecution that, on the basis of the said complaint, FIR was registered as per Ex.P-10. Thereafter, the entrustment mahazar 6 was prepared in the office of Lokayukta as per Ex.P-
2. Trap was laid against the accused as per mahazar Ex.P-3. Thereafter, the Investigating Officer, after completing the investigation, filed the charge sheet against the accused for the offences punishable under Sections 7, 13(1)d read with Section 13(2) of Prevention of Corruption Act, 1988.
6. Then, the Trial Court, after framing the charge, conducted the trial against the accused and ultimately considering the oral and documentary evidence so also the material objects, convicted the accused for the said offences and sentenced to undergo Simple imprisonment for six months and also to pay a fine of Rs.500/-.
7. Being aggrieved by the said judgment and order of the Trial Court, appellant/accused has challenged the legality and correctness of the said judgment; and the appellant-State in another appeal 7 challenged the sentence imposed on the accused that it is inadequate and hence, sought for enhancement of sentence.
8. The appellants in respective appeals have challenged the judgment and order of the Trial Court on the grounds urged in their respective appeal memorandums.
9. Heard the arguments of the learned counsel appearing for appellant/accused in Crl.A.No.764/2009, who was also the counsel for the respondent in Crl.A.No.284/2010 so also heard the arguments of the learned Spl.P.P for the respondent- in Crl.A.No.764/2009, who was also the appellant in Crl.A.No.284/2010.
10. Learned counsel for the accused during the course of his arguments submitted that the Police Inspector, who received the complaint has not been examined in the case. He has also submitted that in 8 the complaint there is no allegation that accused demanded one acre of landed property as bribe. Prosecution has not proved that there was demand and acceptance of bribe amount by the accused. There is no specific mention in the complaint about the day or date on which the demand for bribe was made. As per the materials on record, there was no application made either by PW-1 or by PW-7 for the change of katha. He has also submitted that no work of complainant or his sister was pending with the accused. Therefore, the question of accused showing official favour to the complainant and demanding and accepting the bribe amount does not arise at all. No sketch was drawn in respect of the place where the alleged offence said to have been taken place. Ex.P-5, the explanation of the accused, was not at all put to him during the course of his examination under Section 313 of Cr.P.C. Hence, when there is no acceptable evidence regarding the demand and 9 acceptance of bribe amount, question of raising presumption under section 20(1) of Prevention of Corruption Act, does not arise at all. These aspects were not at all properly appreciated by the Trial Court and the accused has been wrongly convicted. Hence, submitted to allow the appeal and to set-aside the judgment and order of conviction.
11. In support of his contention learned counsel for the appellant/accused has relied upon the following decisions filed along with memo dated 14.01.2015:
i. 2006 (3) KCCR 1445
ii. 2004 (2) KCCR 1233
iii. (2007) 3 SCC (Cri) 175
iv. 2002 Cri.L.J 2787
v. 1995 SCC (Cri) 509
vi. 1976 Cri.L.J 346
vii. AIR 1979 SC 1408
viii. (2009) 3 SCC 779
ix. (2011) 6 SCC 450
x. 2006 (3) KCCR 1422
xi. Crl.A.No.1339/2003
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12. Per contra, the learned Spl.P.P appearing for the respondent-State, during the course of his arguments submitted that PW-1 has clearly deposed on oath before the Court that the accused demanded and accepted the bribe amount. The Trial Court has properly appreciated the oral and documentary evidence and rightly convicted the accused person. No illegality has been committed nor there is any perverse or capricious view taken by the Trial Court. Hence, submitted to dismiss the appeal preferred by the accused.
13. With regard to the State appeal is concerned, the learned Spl.P.P has submitted that minimum sentence for the said offence is one year. Therefore, the Trial Court imposed inadequate sentence as against the accused. Hence, the same is to be enhanced by allowing the appeal preferred by the State.
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14. Learned Spl.P.P for the respondent- Lokayukta, in support of his arguments relied upon the following decisions filed along with memo dated 20.01.2015:
i. AIR 2011 SC 608
ii. Crl.A.2271/2011
iii. AIR 2012 SC 3359.
15. I have perused the oral evidence of PWs-1 to 7, documents Ex.P-1 to P-10 and Ex.D-1 to D-1(a), Material objects M.O.s-1 to 7. I have also perused the grounds urged in the appeal memorandum, judgment and order passed by the Trial Court and also the decision relied upon by the learned counsel for the accused and the learned Spl.P.P for the respondent-State.
16. One Shamanna, filed the complaint on behalf of his elder sister Nagarathnamma. Perusing his oral evidence, who has been examined as PW-1, it is stated that on 31.07.2002 Vijay Kumar has asked him to give one gunta of land or to pay Rs.5000/- for 12 change of katha into the name of his elder sister. Regarding this demand of one gunta of land, it is for the first time that he has stated in his deposition and looking to the complaint Ex.P-1 there is no mention about the demand for one guntas of land. In para 2 of his deposition, PW-1 has further deposed that on 30.07.2002 being not satisfied to pay a sum of Rs.5000/-, he took his sister to Lokayukta office and consulted SP and other officer, produced the record and SP said that the documents are in order and asked him to get Rs.4000/-, which he has agreed to pay, and to come on the next day, that he will arrange for panchas. On 31.07.2002 they went to the Lokayukta office. But perusing the entrustment mahazar and also the oral evidence of Investigating Officer/PW-6, on 31.07.2002 at 4.30 p.m. complainant appeared before him and filed typed complaint. He has also produced affidavit and produced some document along with the complaint. 13 So it clearly shows that on 30.07.2002 PW-1 had not at all been to the Lokayukta office, the materials show that as per entrustment mahazar Ex.P-2 and also the evidence of PW-6 and other witnesses, PW-1 had been to the office of the accused to enquire about the change of katha and as he demanded the bribe amount then he went to the Lokayukta office on 31.07.2002 at about 6.00 pm as per evidence of PW-
1. Therefore, these materials create doubt on which day and at what time the appellant/accused demanded the bribe amount from the complainant/PW-1. If the evidence of PW-1 is taken into consideration, the demand was on 30.07.2002, whereas the averments in the complaint, entrustment mahazar and the evidence of PW-6/Investigating Officer, they shows that the demand was on 31.07.2002. Therefore, there is inconsistency and contradictory version on the side of prosecution with 14 regards to the date, time and place of demand of bribe amount is concerned.
17. In his oral evidence PW-1 has deposed that thereafter they proceeded in a car, left Bangalore by 8.00 a.m and reached Devanahalli by 9.00 a.m. Out of the two witnesses, one was coming behind him and he does not remember his name. This evidence shows that even the complainant was not knowing the name of the shadow witness, who was asked to accompany the complainant to the residence or the office of the accused person. To observe what is happening between the complainant and accused person, witness No.1/S.C.Basavaraj was asked to accompany the complainant to the office of the accused. The averments of the entrustment mahazar Ex.P-2 also shows that on 31.07.2002 itself when the complainant had been to office of Lokayukta the witness Basavaraj and Sidrajegowda also came to office of the Lokayukta office and they were 15 introduced to the complainant and they have also enquired with the complainant about the contents of the complaint. When that being the case of the prosecution as per Ex.P2 entrustment mahazar, the evidence of PW-1 that one witness was coming behind him and he does not remember his name, is difficult to accept.
18. With regard to demand and acceptance of bribe amount is concerned, PW-2 Basavaraju deposed in his examination in chief that on 01.08.2002 they went again to the Lokayukta office and before they went, proceedings were recorded and he has signed it as per Ex.P-2b. He has stated that they went to Devanahalli and he was asked to accompany the complainant so he went along with complainant. They were instructed to give signal after payment of money by Shamanna. He did not accompany into the house of AGO. Shamanna alone went and came out after 5 minutes. Thereafter, he 16 gave the signal. This witness was treated as hostile as per the request of learned PP and when cross examined by PP it was not specifically suggested to him that he was asked to accompany the complainant to the residence/office of the accused to observe what is happening between the complainant and accused and accordingly, he accompanied the complainant to the residence of AGO. In view of this evidence of PW-2 the shadow witness so far as demand of bribe amount is concerned, the only evidence is of PW-1/complainant. I have already observed that even with regard to the evidence of PW- 1 there is no consistency. Because in the evidence of PW-1 it is deposed that on 31.07.2002 accused Vijaykumar asked him to give one gunta of land to him or pay Rs.5000/- to him.
19. Regarding the trap mahazar Ex.P-3 is concerned it is true, the evidence of PW-6 the Investigating Officer shows that on 01.08.2002 they 17 all went to Devanahalli and reached Devanahalli by 9.00 a.m. by then the office of AGO was not yet opened as the AGO's house is opposite to Tahasildar's office, he sent the complainant and shadow witness to the house of AGO. After 25 minutes of such sending, complainant, shadow witness gave signal as the one suggested. So, himself and his staff and other panchas entered the house of AGO. He identified the accused along with his staff, informed him about the purpose of his visit to AGO. He took assistance of his staff and got prepared sodium carbonate solution, a sample was segregated on both the bowls, it was sealed in two empty bottles. Thereafter, the right and left hand wash of AGO was taken in remaining two separate blows of sodium carbonate solution and the solution turned into pink colour. The said solutions were separately seized, sealed and labeled. He asked the AGO as to where is the money given by the complainant, he identified the 18 same, which was on the table. Second panch was directed to verify the note numbers, he verified from entrustment mahazar and said that it tallies. The said notes were seized separately. Thereafter, preparing one more bowl of sodium carbonate solution, the complainant's right hand was dipped and it also changed to pink colour. So he deposed in detail about seizure of the amount by conducting the trap mahazar at the said place.
20. During the course of cross-examination, he deposed that prior to 31.07.2002 complainant has not come to his office. In the affidavit Nagarathnamma has said that she is aged and she cannot move personally on account of her age. He did not instruct the complainant to get the affidavit. He admitted it as true that for change of katha and preparing of sketch an application has to be filed. He further admitted as true that even before complainant reaching him the sketch was drawn. He 19 further deposed and admitted as true as per the deposition before the Court complainant has said to the AGO at para 3, of bringing the money asked by the AGO. No such statement is found in the panchanama. He has further deposed, complainant has also not said of going into the house and bringing money from box by the accused.
21. Looking to the document Ex.P-8 chemical examination report, that the hand wash of the accused in the sodium carbonate solution of the right and left hand, presence of phenolphthalein was detected. The evidence of PW-6 no doubt shows the seizure of tainted currency notes. But perusing the evidence of prosecution witness it has come on record that the amount was seized from the teapai another version that amount has been seized from the box in the house of accused. The third version is that the amount was seized, which was kept on the table in the house of the accused. So there are three 20 inconsistent version as per the case of the prosecution regarding the place from where the amount is said to have been seized. PW-1 in his evidence in examination in chief has deposed that then police caught hold of two hands of Vijaykumar, thereafter asked to him sit at the place, where he was sitting. Then he was asked to say about the money, where he has kept the money. The money was kept in a box, he went and brought the money from the box.
22. PW-2/Basavaraj, who is shadow witness according to prosecution case, deposed in his evidence in the examination in chief that he did not accompany Shamanna to the house of AGO. Shamanna alone went and came out after 5 minutes thereafter he gave signal, he also gave signal. Thereafter, staff came and they went jointly. Then Shamanna identified a person as Vijaykumar and said he has received money. Thereafter sodium 21 carbonate solution was prepared in 2 bowls and sample was segregated and both the hands of AGO were dipped separately and the wash of the AGO turned into pink colour. Thereafter, he was asked about the money and it was lying on teapai. Money was taken by them. He has not seen of Vijaykumar keeping the money on the teapai.
23. PW-4/Siddrajegowda in his evidence in examination in chief deposed they were waiting near the quarters at Devanahalli, an aged man went into the quarters and he came out and gave the signal. He was asked to follow them. Investigating Officer and his staff entered first, so he followed them. He found the money on the table. The said person said that there is nothing pending with him. He was asked to take the cover and thereafter his hands were washed. The colour of the solution changed. 22
24. During the course of cross examination of PW-4, PW-4 has deposed that after the AGO removed the money, which was on the table and then gave it to the Investigating Officer, the hands of the AGO were washed. So this material on record, also shows that the raiding party asked the accused to take out the money from the teapai or the table, accused took out the same, he gave it to the Investigating Officer then the hand wash of accused was taken, which turned into pink colour. This material on record also raises reasonable doubt as to the case of the prosecution that the accused demanded the bribe amount and received Rs.4,000/- bribe amount smeared with phenolphthalein powder and thereby the prosecution proved the case that there was demand and acceptance of bribe amount.
25. PW-5/Police Inspector deposed in his evidence that on 18.11.2002 he took up investigation from CW-13 and on 27.11.2002 received the FSL 23 Report of this case as per Ex.P-8. On 18.12.2002 prepared the final report and submitted to SP for according prosecution sanction and received the prosecution sanction as per Ex.P-7. In the cross- examination he deposed that the complainant or his sister has not filed any application for change of katha, according to the records certified by him.
26. PW-6/CPI-Lokayukta Tumkur, deposed in his evidence that on 31.07.2002 at 4.30 p.m. complainant appeared before him and filed typed complaint and produced the affidavit and some documents along with the complaint and he registered the case in Crime No.8/02. He has also deposed in detail about the entrustment mahazar as per Ex.P-2 and his signature is P-2d and further deposed as it was 7.30 by the time the entrustment mahaza was complete as the office of AGO will be closed, asked the witnesses, complainant to come on the next day. On 01.08.2002 all of them reported at 24 8.00a.m. the notes in the said pocket of the complainant were very same and they tallied with the entrustment mahazar. He has also deposed in detail about they proceeding to Devanhalli and laying the trap and drawing the trap mahazar as per Ex.P-3. He asked the AGO as to where is the money given by the complainant. He identified the same, which was on the table. He has also deposed taking the hand wash of the accused in two separate bowls of left and right hand wash and the solution turning into pink colour, which was secured separately, sealed and labeled. Thereafter, the notes were seized separately and sodium carbonate solution prepared in bowl, complainant's right hand was dipped and it also changed to pink colour.
27. In the cross examination, he deposed prior to 31.07.2002 complainant has not come to his office. Complainant has also not said of going into the house and brining the money from the box by the 25 accused. After entering the house, he did not observe whether the money was on the table or not. After entering the house he did not questioned the complainant or shadow witness as to where the money is?
28. Looking to the evidence of the prosecution witnesses, which is referred above, prosecution was also not able to prove exactly from which place the tainted currency notes were seized. In this regard evidence of prosecution witness is not consistent and not worth believable.
29. It has come on record through the mouth of PW-5/Police Inspector, that no application for change of katha was found in the records certified by him. Even PW-1 during the course of cross examination also admitted as true that himself or his elder sister has not given any application for change of katha. This evidence of prosecution makes it clear 26 that there was no application given by the complainant or his sister seeking change of katha. Therefore, the accused person showing the official favour to the complainant and receiving the bribe amount does not arise at all.
30. Perusing the evidence of PW-
1/complainant, the examination in chief shows that on 30.07.2002 being not satisfied to pay the sum of rs.5000 asked he brought his sister to Lokayukta office. Whereas the Lokayukta police i.e., pw-6 clearly deposed prior to 31.07.2002 complainant has not come to his office.
31. So according to the complainant the demand of bribe amount by the accused was on 30.07.2002 itself, if that is so, in the document Ex.D- 1, which is admittedly executed by Nagrathnamma in favour of the complainant on 30.07.2002 the fact of accused demanding Rs.5000/- bribe amount could 27 have been mentioned in Ex.D-1 affidavit. But contents of Ex.D-1 shows that as she was old aged and cannot move and to get the kahta transferred to her name, she is executing the power of attorney in favour of M.Shammana the complainant.
32. So the contents of the Ex.D-1 also probablises the defence of accused that he has not demanded nor accepted the bribe amount. It is true that as per the case of prosecution the currency notes were seized from the teapai/table and hand wash of accused was taken in two separate bowls and the solution turns into pink colour. Prosecution has also produced the FSL Report as per Ex.P-8, which shows that presence of phenolphthalein was detected in the solution containing hand wash of the accused. Mere recovery of amount is not sufficient unless there is a satisfactory proof of demand and acceptance of bribe amount by the accused person.
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33. Looking to the materials about which I have already discussed, this aspect is not at all proved by the prosecution beyond reasonable doubt. About the evidence that the hand wash of accused turned into pink colour which is also supported by the oral evidence of PW-1 and PW-6 so also Ex.P-8 but there is also the evidence from the mouth of prosecution witnesses that the amount was on the teapai the raiding party asked the accused take out that money and to give it to the Investigating Officer and thereafter his hand wash was taken. In view of this material on record, no importance can be attached to the document Ex.P-8 so also the evidence of PW-1 and PW-6.
34. Perusing the entire materials on record and cumulative effect is appreciated it clearly shows that prosecution failed to prove that there was a demand and acceptance of bribe amount by the accused. The Trial Court ignored all these materials, 29 factual as well as the legal aspect and wrongly convicted the accused, the judgment and order of Trial Court is illegal and not sustainable in law. I have perused the decisions relied upon by the learned Spl.P.P appearing for respondent-Lokayukta. In view of my above discussion, the decisions will not come to the assistance of respondent/complainant's case.
35. Hence, Crl.Appeal No.764/2009 is allowed. The judgment and order passed by the Trial Court challenged in the said appeal is hereby set aside, the appellant/accused is acquitted of the charges leveled against him and he is set at liberty.
36. Consequently, Crl.Appeal No.284/2010 preferred by the State seeking enhancement of sentence is hereby dismissed.
Sd/-
JUDGE BSR