Karnataka High Court
A L Shivaraju vs State By The Karnataka on 24 August, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No.1030 OF 2010
BETWEEN
A.L.Shivaraju,
s/o Linge Gowda,
aged about 60 years,
R/at Attihalli, Satur hobli,
Kanakapura Taluk,
Ramanagara District.
...Appellant
(By Sri. K.A.Chandrashekara, Advocate)
AND
State by the Karnataka,
Lokayukta Police,
Bengaluru Rural District,
Bengaluru.
...Respondent
(By Sri. B.S.Prasad, Spl.P.P.)
This criminal appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the order of conviction and
sentence dated 24.09.2010 passed by the Prl. S.J.,
Bengaluru (R) District, Bengaluru in Spl.Case No.133/04
convicting the appellant/accused for the offence p/u/s
13(1)(d) r/w Section 7 of Prevention of Corruption Act., etc.
This criminal appeal coming on for hearing, this day,
the Court delivered the following :
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JUDGMENT
This appeal is filed by accused no.1 in Spl. Case No.133/2004 on the file of Prl. Sessions Judge, Bengaluru Rural District. The prosecution case is as follows:
2. One Basamma purchased 7 acres 34 guntas of land in Sy.No.28, 29 and 44 of Kanegowdanahalli, Nelamangala Taluk in the month of March, 1995 and thereafter she made an application to the Tahsildar, Nelamangala Taluk for change of khata of the said lands to her name. In this connection, the representative of Basamma i.e., PW-4 Maheshwarappa met the Sheristedar to enquire into the action taken on the application made by Basamma. The Sheristedar asked PW-4 to meet the first accused, who was the concerned village accountant. When he met the first accused, he was asked to bring some documents. But PW-4 persisted accused no.1 to expedite the process of change of khata and at that time accused no.1 is said to have made a demand for bribe of Rs.39,000/-. It is stated that if the said amount was paid to him, he would not insist on production of any document for change of khata. When PW-4 met 3 accused no.1 several times, he asked him to bring the money for considering the application. On 22.12.1995, PW-4 met the first accused with one Kempaiah, PW-5 and requested him to scale down the amount. At that time accused no.1 agreed to receive Rs.25,000/- and immediately PW-1 made advance payment of Rs.1,000/- and assured of paying the balance of Rs.24,000/- on the same day evening or the next day morning. Thereafter PW-4 met Lokayukta Police and reported them that there was a demand for bribe by accused no.1. After registration of case, the police arranged the trap which was laid on the same day. It is alleged that accused no.1 received the money and then gave it to accused no.2.
Both accused no.1 and 2 were caught and their hands wash answered positive for phenolphthalein test and thus they were prosecuted for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
3. The trial court after appreciating the evidence produced by the prosecution acquitted accused no.2 of the offences and convicted accused no.1 for the said offences 4 and sentenced him to imprisonment for one year with a fine of Rs.24,000/- with a default sentence clause of three months imprisonment. Hence this appeal by accused no.1.
4. I have heard the arguments of Sri. K.A. Chandrashekara, learned counsel for the appellant and Sri. B.S.Prasad, Special Public Prosecutor for the respondent.
5. Sri. K.A. Chandrashekara has urged four points for reversal of the judgment of the trial court. Firstly he argued that PW-4 had no authority to represent Basamma. She had not executed any power of attorney in his favour. Basamma was not examined though cited as a witness. In the absence of express authority by Basamma in favour of PW-4, the latter had no locus standi to make a complaint to the Lokayukta Police against the first accused and therefore his evidence assumes no significance. Non examination of Basamma is fatal to the prosecution. Thus the trial court has committed an error in holding the appellant guilty of the offence.
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6. His second point of argument is that no work was pending before the first accused on the day when trap was held. He refers to Ex.P.10 to 14 in this regard. The witnesses have admitted about this in the cross examination. If work was not pending, there would not be a demand for bribe and therefore the prosecution story should have been rejected.
7. The third point of argument is that there was no recovery of tainted money from the first accused, it was from accused no.2 that the money was recovered. If there was no recovery from the first accused, it cannot be said that he demanded for bribe and accepted it from PW-4. On this account also the prosecution case fails and consequently he should have been acquitted.
8. Lastly referring to the evidence of PW-3, Sri K.A.Chandrashekara argued that since PW-3 was a shadow witness he should have narrated as to what transpired inside the office of Sub-Registrar. He does not give full account of the conversation that actually took place between 6 accused No.1 and PW-4 and therefore his testimony cannot be held sufficient for believing the prosecution case.
9. Sri. B.S.Prasad, learned counsel for the respondent argues that it was not necessary that PW-4 should have obtained an express authority from Basamma to represent her in connection with change of khata of the lands that she had purchased. He refers to the findings given by the trial court in this regard and submits that these reasons are convincing. Even power of attorney was not necessary. The money was recovered from accused no.2. But the evidence indicates that the first accused gave that money to accused no.4. When the hand wash of the first accused answered positive for the phenolphthalein test, it was for him to explain as to how and why he could meddle with the tainted currency notes. There is no convincing explanation. There is evidence to show that the first accused handed over the money to accused no.2 seeing the police approaching him. From these circumstances it may be presumed that the first accused demanded for bribe from PW-4. The prosecution 7 case cannot be simply disbelieved for want of any authority in favour of PW-4.
10. As regards the pendency of work pertaining to change of khata, it is the argument of Sri. B.S.Prasad that on the day of trap khata had not yet been changed. The file pertaining to Basamma was still with the first accused. Merely for the reason that he had recommended for change of khata, that cannot be a ground for arriving at a conclusion that there was no occasion for the appellant to put forth demand for bribe.
11. Referring to the testimonies of PW-3, it was his argument that he was a shadow witness who accompanied PW-4. There may be some contradictions in his testimony, but they are not so significant for discarding the entire case of the prosecution. His evidence clearly discloses that he saw the appellant handing over money to accused no.2. His answer in the cross examination that he did not hear the conversation between the appellant and PW-4 cannot lead to an inference that he was not inside the Office of the Sub- 8 Registrar where both accused no.1 and 2 were trapped. PW- 4 handed over the money to the first accused in the corridor situated in front of the Office of the Sub-Registrar and then he handed over that money to accused no.2 inside the Office of the Sub-Registrar. The fact that PW-4 gave money to the first accused was witnessed by PW-3 and this evidence is very much believable and therefore the testimony of PW-3 cannot be discarded simply for the reason that there is some contradiction in his evidence. His argument is that the learned trial Judge has rightly appreciated the evidence to come to conclusion that the first accused is guilty of the offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and therefore this appeal deserves to be dismissed.
12. Before answering the actual points of arguments raised by the appellant's counsel, it is necessary to give a look at the evidence available on record. PW-4 Maheshwarappa set the law in motion. It was at his instance that the Lokayukta Police registered FIR. He has clearly stated that Basamma had purchased some lands and 9 made an application to the Thasildar, Nelamangala Taluk for change of khata to her name and in that regard that PW-4 met the first accused. He has stated that the first accused in the first instance demanded for bribe of Rs.39,000/- and it was scaled down to Rs.29,000/- when PW-4 and one Kempaiah i.e., PW-5 met him. He has stated that he made advance of Rs.1,000/- at that time and then he met the Lokayukta Police to report to them about the demand by the first accused for attending to Basamma's application for change of khata. He has given evidence with regard to the trap laid by Lokayukta Police.
13. PW-3, Annaiah is the shadow witness. His testimony shows that the first accused demanded for bribe from PW-4 when he met him just before the trap. He has given evidence that the first accused received money from PW-4 and then gave it to accused no.2, and also about recovery of the said money from accused no.2. He has given evidence with regard to subjecting the first accused and accused no.2 for the phenolphthalein test and the hand wash of each of them answering positive for the presence of 10 phenolphthalein. His evidence also discloses the seizure of files relating to application made by Basamma for change of khata.
14. PW-5 is one N.C.Kempaiah. According to the prosecution PW-4 and 5 met the first accused in his residence and requested for reducing the bribe amount. But PW-5 has not supported the prosecution case. He has turned hostile.
15. PW-6 Narayanappa is an independent witnesses, he was examined to prove that the first accused passed on the tainted money to accused no.2 in his presence in the Office of the Sub-Registrar, but this witness has also not supported the prosecution case.
16. PW-7 was the police inspector who registered the FIR based on the report made by PW-4, held trap after following the formalities. He has given evidence about entire trap.
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17. PW-8 is another police inspector who filed the charge sheet for the first time on 15.4.1997.
18. PW-2 was the Deputy Commissioner who has spoken about according sanction to prosecute accused No.1.
19. PW-1 is another investigation officer who laid charge sheet again after procuring sanction from PW-2.
20. The appellant does not dispute the validity of sanction. However Sri. K.A.Chandrashekara has referred to the evidence of PW-2 for emphasizing the aspect that an answer given by him discloses that no work was pending before the first accused. This aspect will be considered little later.
21. If the entire evidence is assessed once again, it is possible to state that it is not as though the entire evidence is free of discrepancies. Especially in the evidence of PW-3 there is some discrepancy. Examined whether it is so material to discard the entire prosecution case, it is to be stated that it is very trivial. What PW-3 has stated is that 12 he did not hear the conversation between the first accused and PW-4 inside the Office of the Sub-Registrar. The trial court has held that it is not so significant to be given importance because he has testified the fact that he was present along with PW-4 when he met the first accused in the corridor where there was demand once again for money and that he saw PW-4 handing over the amount of Rs.24,000/-. Therefore his evidence clearly discloses demand for bribe and acceptance by the first accused. His answer that he did not hear the conversation between accused no.1 and PW4 inside the Sub-Registrar's office, cannot be considered as a discrepancy, for his evidence is so clear about accused no.1 accepting bribe. The appreciation thus made by the trial court is correct. What is required of a shadow witness is to keenly observe the demand for bribe and acceptance of it by the accused. To this effect there is clear testimony of PW-3. In fact he corroborates the testimony of PW-4. Further evidence given by PW-7 fortifies the evidence given by PW-3 and 4. PW-5 and 6 might have turned hostile, but it cannot be said that 13 the oral evidence given by PW-3 and 4 looses weight. When the police subjected both accused no.1 and 2 to phenolphthalein test, hand wash of each of them answered positive for the presence of phenolphthalein powder. Because PW-3 has stated that pink colour was not visible in the samples of the solution that were shown to him in the open court at the time of trial, it is impossible to say that phenolphthalein test did not answer positive. In course of time the colour fades and this could be the reason for invisibility of pink colour. This is a reasonable inference that can be drawn. Therefore the conclusion is that there is clear evidence that the first accused put forth demand for bribe for attending to the application of Basamma and accepted it on 22.09.1995. The trial court has rightly appreciated the evidence. I do not find any reason to hold a different view.
22. Now if the actual points argued by the appellant's counsel is considered, as regards the first point, the trial court has held that it is not a civil case where actual authority is necessary to enable one person to represent the other. The trial court has referred to the judgment of the 14 Supreme Court in the case of A.R.Antulay Vs. R.S.Nayak - AIR 1984 SC 718 to hold that anybody can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. It is held that the Prevention of Corruption Act, 1988 does not prohibit any person to make a complaint and initiate criminal action. I am also of the same opinion. For the reason that PW-4 had no express authority from Basamma, it is not possible to say that he had no locus standi. His evidence clearly discloses that Basamma had requested him to go to Tahsildar's Office in connection with the change of khata to her name of the lands purchased by her. There is a reason for not examining Basamma. The death was reported.
23. The next point is with regard to pendency of the work before the appellant. It is true that Ex.P.10 to 14 show that the first accused had made an entry that publication in form No.21A had been given for change of khata and he had made the recommendation for change of khata in the name of Basamma. The fact remains that the first accused was not the officer who had authority to effect the change of 15 khata. It is elicited from PW-2 in the cross examination that the first accused had recommended for mutation of khata. Even the investigation officer i.e., PW-7 has given evidence to the same effect. The trial court has recorded findings that mere recommendation by the first accused cannot be considered as completion of the work. The file was still pending before him and this was not intimated to PW-4. This finding of the trial court cannot be said to be incorrect. The first accused could only recommend for change of khata after compliance of legal requirements and of course there is documentary evidence that he had made a note for change of khata in favour of the purchaser i.e., Basamma. But there is no evidence that either Basamma or PW-4 had been notified by him that he had completed his part of the job. The case of the first accused could have been appreciated if he had disclosed to PW-4 that he had already made the recommendation to the next higher authority for change of khata. Though there is a suggestion to PW-3 in the cross- examination that the accused no.1 raised his voice against PW-4 for approaching him because khata had already been 16 changed, the suggestion is denied by PW-3 and the fact was that there was no change of khata as was suggested to him. Attending to the work without disclosing it serves no purpose; it is not possible to appreciate the defence taken in this background, it is very essential that there should be disclosure of completion of work. Moreover it has come in the evidence of PW-4 that demand for such a huge amount was not only for the village accountant, but also for the officers, next higher to him in the cadre. The files pertaining to the change of khata were seized from the custody of the first accused and the only inference that can be drawn is that he had not disclosed to PW-4 that he had attended to his part of the work.
24. So far as recovery of the tainted money, it is true that money was not actually recovered from the first accused; it was from accused no.2. PW-6, the independent witness examined in this regard has not supported. There is evidence to show that the first accused seeing the police approaching him went inside the Office of the Sub-Registrar and handed over the same to accused no.2. Both the first 17 accused and the second accused were subjected to phenolphthalein test; hand wash of each of them answered positive for the presence of phenolphthalein. The presumption available under Section 20 of the Act can be attached if there is no convincing explanation from the accused. In this case the evidence shows that the first accused received money from PW-4 in the corridor and then handed over the same to accused no.2. This part of the evidence is not assailed in any way. Therefore the conclusion is that it was the first accused who received the bribe money pursuant to the demand made by him. Hence this point of argument also fails.
25. The over all conclusion is that prosecution has been able to prove its case. The trial court has rightly appreciated the evidence to hold the first accused guilty of the offence. Merely for the reason that accused no.2 was acquitted, it cannot be a ground for acquitting the accused no.1. I do not find any error in the appreciation of evidence by the trial court.
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26. The trial court has awarded sentence on minimum scale. There is no ground to interfere with the sentence.
From the above discussion, I hold that the appeal fails and it is dismissed.
SD/-
JUDGE sd