Karnataka High Court
Basavaraju S/O Kapani Naika vs State Of Karnataka on 8 June, 2015
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 8TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.126/2010
BETWEEN:
Basavaraju
S/o Kapani Naika
Aged about 63 years
R/at Kamarahalli
D M G Halli Post
Illawala Hobli
Mysore. .. APPELLANT
(By Sri. S Hemachandra, Adv.)
AND:
State of Karnataka
By the Inspector
Lokayuktha Police
Mysore. ..RESPONDENT
(By Sri. Bahubali A Danawade, Adv.)
This Criminal Appeal is filed under Section 374(2) CR. P.C
praying to set aside the judgment dated 13.01.2010 passed by the
Spl. Judge and III-Addl. District and Sessions Judge, Mysore in
Special Case No.101/2002 convicting the appellant/accused for
the offence punishable under Section 7, 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 and etc.
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This Criminal Appeal having been heard and reserved for
orders, coming on for pronouncement of judgment this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by appellant-accused being aggrieved by the judgment and order dated 13.1.2010 passed by the Special Judge and III Addl. District and Sessions Judge at Mysore in Spl.Case No.101/2002 convicting the appellant for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of the Corruption Act.
2. The facts leading to filing of the criminal case are that, P.W.1 one Vrushavendra.P has lodged the complaint dated 30.9.2000 to the Police Inspector, Lokayuktha police station, Mysore alleging that he is residing in the address mentioned in the complaint along with his mother Chinnathayamma and elder sister Sundaramma. The house in which they are staying was of the ownership of one Deveeramma, the maternal grand mother of the complainant. As Deveeramma expired about five years back and mother of the complainant namely Chinnathayamma is the only 3 daughter, the khata of the house bearing No.45 was to be changed in the name of the mother of the complainant. As such, the complainant filed an application to the Secretary of Sinduvalli Gram Panchayath Sri.Basavaraju, the appellant-accused herein requesting him to change the khata. In spite of expiry of one moth after submitting the said application the appellant-accused has not taken any action and again on 23.8.2000, the complainant filed another application and one week after the second application dated 23.8.2000 the secretary of the said Gram Panchayath came to the house of the complainant along with the village Accountant and conducted the mahazar. Thereafter also, the complainant approached the Secretary and asked about the change of khata from the name of his grand mother to the name of his mother for which, the appellant-accused demanded Rs.500/- as bribe amount and when complainant told that it is not possible to pay that much money and requested to reduce the same, the secretary asked to pay Rs.350/- otherwise it is not possible to change khata. The complainant asked the accused when he has to pay the money for which, accused asked him to 4 bring it on Saturday morning i.e., on 30.9.2000 at 11.00 a.m. and then he will do the work of the complainant. As the complainant was not interested to pay the bribe amount and to get the khata changed and as the mother of the complainant was suffering from old age and was not having the knowledge with regard to the said transaction on her behalf, he filed the complaint and requested the Police Inspector, Lokayuktha police to take action against the said Secretary i..e, the accused for demanding bribe amount of Rs.350/-. On the basis of the said complaint Ex.P1, Lokayuktha police have registered the case in their Crime No.8/2000 for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act and submitted the FIR to the concerned Special Court as per Ex.P5.
3. After conducting and completion of investigation the Investigating Officer filed the charge sheet against the appellant- accused for the said offences and thereafter, accused was heard in the matter and charges were framed. As the accused pleaded not guilty, the Special Judge posted the matter for conducting the trial. 5 After the trial and considering the oral and documentary evidence produced in the case on both sides, the trial Court has convicted the accused for the said offences. Being aggrieved by the said judgment and order of conviction and sentence imposed, the appellant herein preferred the above appeal on the grounds as mentioned in the appeal memorandum at point Nos.5 to 12.
4. Heard the arguments of learned counsel appearing for the appellant-accused and also the learned Special P.P. appearing for the respondent.
5. Learned counsel for the appellant during the course of his arguments submitted that the appellant-accused was working as Secretary in the Kadkol Gram Panchayath and by government notification he was given additional charge of Sinduvalli Gram Panchayath. It is also further submitted that the two applications said to have been filed by the complainant for the change of khata are not at all received by the appellant-accused and by the time of alleged trap the appellant-accused had already did his job in 6 respect of the application of the complainant. He has further submitted that P.W.1 has not supported the case of the prosecution. If his evidence is perused carefully, regarding the demand and acceptance of the alleged bribe amount, the prosecution has not placed satisfactory evidence and has not proved its case beyond all reasonable doubt. It is also his submission that the shadow witness is not examined by the prosecution in order to corroborate the evidence of complainant. Perusing the materials and the cross-examination of prosecution witnesses, reasonable doubt arises as to the case of the prosecution as to whether really he has demanded and accepted the bribe amount. It is submitted that all these aspects of the matter were not at all properly considered and appreciated by the trial Court and the trial Court has wrongly read the evidence and has come to the conclusion that the appellant-accused has demanded and accepted the bribe amount and has wrongly convicted him. As such, the judgment and order of conviction are not in accordance with law and the same are to be set aside by allowing the appeal and acquitting the appellant-accused. 7
6. Per-contra, learned Spl. PP. has submitted that demand and acceptance of the bribe amount is proved by the prosecution with satisfactory material. The trial Court has rightly appreciated the case and has rightly come to the conclusion that the appellant- accused has committed the offences alleged against him. No illegality has been committed and there are no valid and justifiable grounds for this Court to interfere with the judgment and order of conviction. Hence, he has submitted that there is no merit in the appeal and the same is to be dismissed by confirming the judgment and order passed by the trial Court. In support of his argument, learned Spl.P.P has also relied upon the decision of the Hon'ble Supreme Court reported in AIR 2010 SC 166 rendered in the case of V.K.Kannan Vs. State represented by Inspector of Police.
7. I have perused the averments made in the complaint, oral evidence of P.Ws.1 to 5, documents Exs.P1 to P10 and also the documents Exs.D1 to D3 and material objects MOs.1 to 10 placed before the trial Court during the course of trial. Perused 8 the judgment and order of conviction passed by the trial Court and challenged in this appeal, the grounds urged in the appeal memorandum. I have also considered the submissions made by learned counsel on both sides at the bar, which are referred above and also the decision relied upon by the learned Spl. P.P., referred above.
8. The case of the prosecution is, the house bearing khata No.45 originally is of the ownership of one Deveeramma, the grand mother of the complainant and said Deveeramma was having only daughter i.e, Chinnathayamma who is the mother of the complainant. As Deveeramma expired about five years back prior to filing of complaint, the said house property had to be transferred to her only daughter i.e., Chinnathayamma by changing the name in the khata and in that connection though the application was given to the Secretary of Gram Panchayath, he has not taken any action and again another application was given on 23.8.2000 requesting for change of the khata. One week after the said second application, the accused-appellant visited the 9 house of the complainant's grandmother along with his assistant and drawn the sketch and in spite of all these things, change of khata was not effected. As such, the complainant has personally met the Secretary, i..e, the accused-appellant herein and at that time the appellant-accused demanded Rs.500/- for change of khata and on request, the same was reduced to Rs.350/-. It is his further case that as the complainant was not interested to pay the bribe amount for getting the khata changed in to the name of his mother, he approached Lokayuktha police and lodged the complaint.
9. Perusing the document Ex.P2, which is the entrustment mahazar said to be drawn in the Lokayuktha office, its contents shows that after the complainant approached the Lokayuktha police and lodged the written complaint, the Lokayuktha Police secured P.W.2 P.S.Chandrashekar and another person C.W.4 one Jnanamitrakumar as panch witnesses and introduced the complainant to them and informed them that complainant has lodged the complaint against the accused and asked the panch 10 witnesses to go through the contents of the complaint and to get the confirmation about the same from the complainant. Accordingly, when they asked the complainant about the contents of the complaint, the complainant confirmed the same that the appellant-accused demanded the bribe amount. The entrustment mahazar proceedings also shows that complainant produced Rs.350/- i.e., intended bribe amount to be payable to the appellant-accused i.e, three currency notes of denomination of Rs.100/- and one currency note of denomination of Rs.50/- and the numbers were noted by the panch witnesses in a slip of paper and thereafter, phenolphthalein powder was smeared on both sides of the currency notes and then those tainted currency notes were kept on the left side shirt pocket of the complainant. Regarding this entrustment mahazar proceedings the mahazar under Ex.P2 was drawn in the presence of complainant as well as panch witnesses and the Lokayuktha police. It has also come on record that after the entrustment mahzar prodceedings are completed, the trap party left towards Kadkol Gram Panchayath office. The contents of the Ex.P2 entrustment mahazar also 11 shows that the Lokayuktha inspector instructed the complainant to go to the office of the accused and to enquire about his work and in case if the accused demands the bribe amount, he has to pay the amount kept in his pocket, if not asked he should not touch those notes and C.W.4 Jnanamitrakumar was asked to accompany the complainant to the office of the accused and to observe what is happening between complainant and accused- appellant herein. The complainant was also instructed by the Police Inspector that in case accused received the bribe amount then he has to come out from the office of the accused and give signal by wiping his face with hand kerchief. Regarding Ex.P2 the entrustment mahazar, so also the averments in the complaint Ex.P1, the witnesses P.Ws.1 and 2 have also deposed in their oral evidence in detail and the evidence of both the witnesses is consistent and cogent. Even in their cross-examination, they have deposed on oath about the complainant going to the office of the Lokayuktha Police, lodging the complaint and also drawing of the entrustment mahazar proceedings and except some minor discrepancies, nothing has been elicited from their mouth so as to 12 disbelieve the case of the prosecution about P.W.1, the complainant lodging the complaint before Lokayuktha police and the averments made in the complaint regarding accused demanding the bribe amount of Rs.350/- for effecting change of khata and also about conducting the entrustment mahazar proceedings.
10. I have also perused the document Ex.P3, the trap mahazar. It is the case of the prosecution that on 30.9.2000 at about 3.00 p.m. they went to kadkol and the police jeep was stopped at a little distance near Raghavendra Bhavan and then the complainant and C.W.4 Jnanamitrakumar were asked to go to the office of the accused and accordingly, they went to office of the accused at about 3.10 p.m. and at about 3.15 p.m. the complainant and C.W.4 came out of the office of the accused and gave the pre- arranged signal and immediately the Lokayuktha Inspector along with P.W.2 P.S.Chandrashekar the panch witness and other lokayuktha staff rushed to the chamber of the accused and the complainant P.W.1 shown the accused Basavaraju to the 13 Lokayuktha Inspector and told that he has received the bribe amount of Rs.350/- from him. Looking to the contents of Ex.P3 trap mahazar it shows that when the complainant gave the bribe amount to the accused, he received it with his right hand and verified and then he kept the said notes in his table drawer. The mahazar proceedings also shows that when the complainant along with C.W.4 went to the office of the accused and when complainant asked about his work, the accused asked him to pay the bribe amount for doing his work. When complainant gave the amount the accused shown the papers to the complainant stating that everything is kept ready for change of khata and he has to only obtain the signature of the President and asked the complainant to come on Tuesday ie., 3.10.2000. The trap mahazar Ex.P3 also shows that the Lokayuktha police staff caught hold of both the hands of the accused and in two separate bowls sodium carbonate solution was prepared and firstly when the right handwash of the accused was taken in the sodium carbonate solution it turned into light pink colour and same was secured in a bottle and was sealed. When the left hand wash was taken in the 14 sodium carbonate solution in another bowl, there was no change in the colour of the solution and it was also secured in a separate bottle and sealed. After taking hand wash of the accused, he was asked to produce the bribe amount and the accused taken out the amount from the papers which was kept in the drawer and produced before the Lokayuktha Inspector and the same was seized, so also, the papers were also seized and phenolphthalein powder which was found in the paper in which the notes were kept was also marked with pencil by the Lokayuktha Inspector and that paper was also seized and the marked portion was washed with the cotton swab and it was also preserved. When the Lokayuktha Inspector asked for the explanation of the accused, the accused gave his explanation as per Ex.P6 stating that he has not demanded any bribe amount and the complainant himself kept that amount in his table drawer. The Lokayuktha Inspector has also seized the papers pertaining to said house property which were also marked as per Exs.D1 to D3.
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11. Regarding the trap mahazar proceedings Ex.P3, I have also perused the evidence of P.W.1 complainant, P.W.2 P.S.Chandrshekar the panch witness and P.W.5 the Police Inspector who is the investigating officer of the case. The oral evidence of all the three witnesses clearly shows that trap mahazar proceedings were conducted in the office of the accused and the amount was recovered from the table drawer of the accused, which was produced by the accused. The evidence of the witnesses consistently goes to show that the accused received the bribe amount from his right hand and kept it in the table drawer and when asked by the Lokayuktha Inspector after the trap, the accused taken out the amount and produced the same before them.
12. It is no doubt true that as per the cross-examination portion of P.W.5, the Lokayuktha Inspector, it is stated by him that the application dated 23.8.2000 was not available to him during his investigation. He has also deposed that as per the complaint averments it is not mentioned that accused demanded 16 the bribe amount on 23.8.2000 and in the FIR column No.3 the date of the incident is mentioned as 23.8.2000. When P.W.5 was questioned as to on what basis he has mentioned the date of incident as 23.8.2000 he answered that as the complainant orally informed him that on that date the accused demanded the bribe amount, he has mentioned the same as date of incident. On the evidence of prosecution witnesses in the cross-examination and more particularly the evidence of P.W.5, the Lokayuktha Inspector, it is the contention of the appellant-accused that when two earlier applications were filed by the complainant, the accused was not at all the Secretary of Sinduvalli Gram panchayath and one Mr.Nagaraju was the earlier Secretary and the accused never demanded and accepted the said bribe amount to show any official favour so far as the work of the complainant is concerned.
13. Regarding the demand and acceptance of the bribe amount of Rs.350/- by the accused from the complainant, it is no doubt true that the burden is on the prosecution to establish the said fact with satisfactory material. But to ascertain whether there 17 was demand and acceptance of bribe amount or not, the Court has to consider the cumulative effect of the entire materials placed on record and not refer to the said material in isolation. For this purpose, both oral as well as documentary evidence placed on record will have to be appreciated. If the contents of the complaint are perused it is seen that the complainant has not stated that accused has demanded the bribe amount on 23.8.2000, but what he has stated is that on the earlier application when no action was taken even for a period of one month again on 23.8.2000 he has filed another application and one week thereafter the accused along with his assistant came to the house of the complainant and drawn the sketch and thereafter when the complainant met the accused again, at that time, accused demanded Rs.500/- which was ultimately reduced to Rs.350/-. Therefore, even if it is deposed by the witness P.W.5 that as complainant orally stated before him he has mentioned the date of incident as 23.8.2000, but the evidence i.e., documentary evidence as per Ex.P1 and oral evidence of the complainant is clear on this aspect. It is also the prosecution case that when the 18 Inspector asked the accused person after the trap mahazar proceedings about his explanation, he has gave his explanation as per Ex.P6 and Ex.P6(a) is his signature. Even during the course of cross-examination, accused giving his explanation as per Ex.P6 is admitted and not denied. If at all his explanation is taken to be true that he never demanded the bribe amount and the complainant himself has kept the amount in the table drawer of the accused, the evidence on the side of the prosecution shows that when the trap party immediately entered into the chamber of the accused after complainant giving the pre-arranged signal, the hand wash of both the hands of the accused was taken in the sodium carbonate solution. In the evidence of PW.1 complainant, P.W.2 P.S.Chandrashekar, the panch witness and P.W.5, the investigating officer, all have consistently stated that when hand wash of the accused was taken in the sodium carbonate solution separately, the right hand wash turned into pink colour and when the left hand wash was taken there was no change in the colour. If the accused has not at all touched the amount and not received it from the complainant into his right hand and if the complainant 19 has directly kept the amount in the table drawer of the accused, then how the right hand wash turned into pink colour, it is not explained by the accused. This itself falsifies the explanation offered by the accused that complainant has directly kept the bribe amount into the table drawer of the accused. The recovery of the amount from the table rawer of the accused which is taken out by the accused himself and produced before the Lokayyktha Inspector has also been established with satisfactory evidence. Therefore, the oral evidence as well as the documentary evidence clearly establishes that it is the accused who demanded and accepted the bribe amount from the complainant.
14. Though it is the contention of the accused during the course of cross-examination of prosecution witnesses that by the date of alleged trap he had kept everything ready for the change of khata except obtaining signature of the President is concerned, when the signature of the President is not yet obtained and it was still pending, it cannot be said that the documents were kept ready for the change of khata. It is not the defence of the accused that 20 obtaining signature from the President to the document was not the job or the work of the appellant-accused and that it was the work of some other employee of the Gram Panchayath. When that is so, and the evidence on the side of the prosecution more particularly, the evidence of P.Ws.1, 2 and 5 shows that after receiving the bribe amount, accused told the complainant that he has kept everything ready and he has to only obtain the signature of the President and asked the complainant to come on Tuesday i.e., 3rd October, this itself shows that the work was still pending with the accused for the change of khata.
15. It is true that C.W.4 Jnanamitra Kumar who was the shadow witness in the proceedings as per the case of the prosecution has not been examined in the case. I have gone through the judgment of the trial Court wherein it is clearly stated by the Presiding Officer that even though four times process was issued, it was not served on him as he had stopped attending the office work. As his whereabouts were not known, his evidence was dropped. So, the prosecution has taken steps for four times 21 to get the process served on him in order to examine the said witness before the Court. Only because C.W.4 is not examined before the Court, the entire prosecution material cannot be rejected by the Court. When the material placed on record i.e., evidence of complainant P.W.1, panch witness P.W.2 and evidence of P.W.5 the Investiating Officer have been satisfactorily established by the prosecution and there are no serious infirmities in their evidence during the course of cross-examination also, I am of the opinion that the trial Court has rightly appreciated the entire material on record, both oral and documentary and considered each and every aspect of the matter extensively and has rightly come to the conclusion that prosecution has proved its case beyond all reasonable doubt.
16. The standard of proof beyond all reasonable doubt does not mean that there should be a perfect proof. It is the yardstick for the Courts to appreciate the materials on record and to come to the conclusion whether charges are proved beyond reasonable doubt or not. No illegality has been committed by the 22 trial Court nor there is any perverse or capricious view taken in coming to such conclusion. Therefore, there are no grounds for this Court to interfere with the judgment and order of conviction passed by the trial Court.
17. Perusing the materials on record and the nature and seriousness of the offence, I am of the opinion that the sentence imposed by the trial Court for the said offence is reasonable and proportionate. Hence, there is no merit in the appeal and accordingly, appeal is dismissed and judgment and order of conviction and sentence imposed by the trial Court are hereby confirmed.
Sd/-
JUDGE bkp