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Karnataka High Court · body

2007 DIGILAW 706 (KAR)

State of Karnataka v. Khaleel Ahmed

2007-10-29

H.V.G.RAMESH

body2007
JUDGMENT 1. This appeal is by the State/Lokayukta assailing the order of acquittal passed by the Special Judge, Gulbarga in Spl. C 28/1997. 2. Charge sheet was filed after investigation against this respondent accused to the effect that he being a public servant when the complainant Sharanappa met him on 21-6-1996 requesting him to fix the rent of his house which was allotted to SC/ST hostel, at that time he demanded a sum of Rs. 3,500/- from him and again on 25-6-1996 when the complainant met him, he demanded a sum of Rs. 1,500/- and told him to pay the remaining balance of Rs. 2,000/- later. Thereafter, the complainant being aggrieved, on 26-6-1996 around 3.30 p.m. after informing the Lokayukta Police, went to the accused and the accused accepted a sum of Rs. 1,500/- from the complainant in the presence of P.W. 7 Manohar and he being a public servant demanded and accepted illegal gratification other than the legal remuneration, as a motive for doing an official favour and thereby committed the offence punishable under S. 7 of the Prevention of Corruption Act, 1978. Thus, in accepting the illegal gratification for showing official favour, by corrupt means, for criminal misconduct, the accused was charge sheeted for the offence under S. 13(1)(d) r/w S. 13(2) of the Prevention of Corruption Act, 1988. After laying the charge sheet, charge was framed for the above said offences on 18-2-1998. Since the accused pleaded not guilty, trial was held. The Lokayukta Police examined in all nine witnesses and got marked about twenty documents and about six material objects. Thereafter, the accused was examined under S. 313, Cr.P.C. and his defense was, he did not receive the bribe of Rs. 1,500/- rather, along with the complainant he went to P.W. 4 —Accountant to get him army welfare tickets for Rs. 1,500/- and since P.W. 4 was not in his seat, while returning from the chamber of P.W. 4, a trap was laid against him and he was booked for the alleged offence although he is innocent of the said offences. Further, according to him, it is not his duty nor was he entrusted with the issuance of the certificate or to fix the rent of the house of the complainant to be let out to SC/ST hostel. Further, according to him, it is not his duty nor was he entrusted with the issuance of the certificate or to fix the rent of the house of the complainant to be let out to SC/ST hostel. There was no necessity for him to either demand or accept the bribe rather, he only facilitated the complainant to purchase the army welfare tickets as it was insisted upon by the Officers to issue such certificate and nothing else. 3. Learned Special Judge after hearing the arguments, on the ground that P.W. 5 the complainant has not supported the version of the prosecution, stating that he has given two versions which have created a doubt, went in favour of the accused as per settled law stating that in such a case, the accused is entitled for the benefit of doubt, and accordingly acquitted the accused. Hence, this appeal by the Lokayukta Police. 4. Heard the counsel representing the Lokayukta and the counsel representing the accused respondent. 5. It is the submission of Sri Koti, counsel representing the Lokayukta, the material evidence on record depicts that an amount of Rs. 1,500/- was found in the pant pocket of the accused which was treated with Phenolphthalein Powder and even prior to that there was a panchanama conducted in this regard by smearing of Phenolphthalein Powder on the currency notes in the presence of the panchas and the same was recovered from the pant pocket of the accused. Although P.W. 5 has not supported the demand and acceptance but ultimately the trap was laid, the hands of the accused and the pant pocket when washed with water, the water turned pink in colour thus proving the acceptance of Rs. 1,500/- cash which was recovered in the presence of Panchas and also supported by the Panchas. It is submitted that the stand of the accused that he intended to get the tickets from P.W. 4 cannot be accepted as those army welfare tickets which were intended to be sold by the said office were already sold and the remaining tickets if at all, were to be sold by other sub-divisions as such, question of this accused taking the complainant to P.W. 4 —Accountant to get him army welfare tickets does not arise. It is his further submission that when the accused has given an explanation as per S. 20 of the Prevention of Corruption Act, the initial presumption on such recovering the amount will be in favour of the prosecution that the accused is guilty of the offence and it is for the accused to rebut the said presumption. The stand taken by the accused in rebutting the presumption is not acceptable as there were no such tickets available to be sold, the defence fails as such, in view of the presumption under S. 20 of the Act. Ultimately all the evidence on record leads to the inference that the accused has demanded and accepted the bribe. Accordingly, he submitted that there is cogent and sufficient evidence on record to hold the accused guilty. In support of his argument, learned counsel has relied upon the decision in the case of T. Shankar Prasad v. State of Andhra Pradesh, 2004 Cri LJ 884 : ( AIR 2004 SC 1242 ). 6. Per contra, counsel representing the accused submitted that even as per the version of the complainant, the amount was taken by the accused only to get him army welfare tickets from the Accountant P.W. 4 and as admitted by P.W. 5 complainant himself, he went along with the accused to purchase the tickets from P.W. 4 and since P.W. 4 was not in his seat, while returning, trap was laid and the amount was seized. According to the learned counsel, it is neither the duty of the accused to issue certificate nor to fix the rate as per requirement as to the rental value of the house of the complainant and it was the duty on the part of the Executive Engineer and the Assistant Executive Engineer and, there is no role played by the accused and when two versions were there, as rightly pointed out by the learned Special Judge regarding the amount that is being given to the accused, the one that is favourable to the accused has to be accepted. Mere seizure of the amount from the accused is not sufficient to hold he is guilty of the offence much less when the amount so seized has been properly explained by the accused and further, there are no independent witnesses to say that the accused has demanded and accepted the money and the evidences of the Panch witnesses and other witnesses are only that of interested witnesses, they being the raiding party as such, the evidence of either the Panchas or other witnesses who are independent to the raiding party cannot be accepted. Further, according to him, even the explanation given by P.W. 4 regarding the tickets which he was dealing and that the accused was not dealing with the same also fortifies the fact that P.W. 4 alone was dealing with the sale of army welfare tickets and the defence taken by the accused is truthful and apart from that, as submitted by P.W. 5 complainant, though he has stated that he had handed over the money to the accused but still, he has admitted that he himself and accused approached P.W. 4 immediately to purchase those tickets, fortifies the defense of the accused. 7. It is further submitted that as per the evidence of P.W. 8 - Executive Engineer himself, this accused was neither competent nor authorised to fixed the rent as such, question of the complainant paying bribe to the accused does not arise. Even any such amount that is recovered is only towards the purchase of army welfare tickets as stated by the complainant P.W. 5 as well as the accused and nothing else. Accordingly, in support of his argument, learned counsel relied upon the judgment of the Himachal Pradesh High Court in the case of State of Himachal Pradesh v. Tej Ram, 1990 Cri LJ 995, to contend that demand of illegal gratification by the accused ought to be proved beyond reasonable doubt and also in the absence of independent witnesses not included in the raiding party, the prosecution case has to be treated as doubtful and the accused is entitled to be acquitted. 8. 8. Similarly, he has also relied upon the decision of the Supreme Court in Som Prakash v. State of Punjab, AIR 1992 SC 665 , to contend that in respect of an offence of accepting illegal gratification, the witnesses forming part of the raiding party is not an independent witness as such, the evidence regarding handing over money to the accused is unbelievable and conviction cannot be sustained. Relying on these two judgments, learned counsel contended that in the absence of any such independent witnesses, when the version of the defence of the accused is probabilised with that of the complainants evidence, the accused is entitled for the benefit of doubt as such, he cannot be held guilty and sought for confirming the order of acquittal passed by the Special Judge. 9. In the light of the arguments advanced, let me consider whether the Special Judge has committed any error or illegality in appreciating the material evidence on record in holding the accused not guilty of the offence; whether the presumption drawn as per S. 20 of the Prevention of Corruption Act drawn in view of the amount seized from the hands of the accused has been rebutted by the accused by cogent evidence and that his defence stands to reason; and, what order. 10. In the instant case, it is noticed P.W. 5 who is the complainant regarding issuance of certificate certifying the rental value of the house, is said to have approached the accused who is a Second Division Assistant in the office of the Executive Engineer. On such approach, according to the complainants version, this accused is said to have demanded Rs. 3,500/- from the complainant. In this regard, complainant approached the Lokayukta Police and on the date the amount was to be presented/paid to the accused, the raiding party went to the office of the Executive Engineer at Yadgir along with the Panch witnesses and the complainant and P.W. 9 - Dy. Superintendent of Police, Lokayukta who has undertaken to trap and to conduct the investigation also accompanied after registering the complaint filed by the complainant - P.W. 5. After conducting the preliminary report of smearing of Phenolphthalein Powder on Rs. 1,500/- currency notes and also conducting panchanama in this regard, the notes were given to the complainant to be handed over to the accused on demand. After conducting the preliminary report of smearing of Phenolphthalein Powder on Rs. 1,500/- currency notes and also conducting panchanama in this regard, the notes were given to the complainant to be handed over to the accused on demand. Subsequently, the complainant went and approached the accused as per the arrangement and handed over the amount to the accused. Of course, the complainant did not wholeheartedly support the version of the prosecution as to the demand and acceptance of the illegal gratification. But, P.W. 9 - Dy. SP of the Lokayukta who accompanied the raiding party and seized the amount and the Panch witnesses viz., P.W. 5 and P.W. 7, have supported the version of the prosecution regarding the preliminary panchanama conducted in the office of the Lokayukta regarding the smearing of phenolphthalein powder to the currency notes given by the complainant and in turn handing over the same to him to be given to the accused. Both the Panch witnesses have spoken about the statement made by the complainant regarding demanding of illegal gratification by the accused. They have also spoken about getting into the office of the Executive Engineer where the accused was present and on giving signal by P.W. 5 complainant after accomplishment of the work viz, handing over the money to the accused, thereafter, the Dy. SP - P.W. 9 went there, conducted the test by washing the hands of the accused with water and the water turning into pink colour as also the pant pocket where the money was kept by the accused, which was noted in the panchanama. Thus, there is evidence on record to hold that the amount recovered from the accused was received by the accused. 11. The question is now whether the amount has been accepted by the accused towards illegal gratification as a matter of demand and acceptance. Of course, though it is the version of P.W. 5 - complainant as per the complaint that there was demand made by the accused in a sum of Rs. 3,500/-, he has given a clear go by the this version. Rather, according to him, the accused asked him to purchase army welfare tickets of Rs. 3,500/- but, expressing his inability to purchase that much, he agreed only to purchase tickets worth Rs. 3,500/-, he has given a clear go by the this version. Rather, according to him, the accused asked him to purchase army welfare tickets of Rs. 3,500/- but, expressing his inability to purchase that much, he agreed only to purchase tickets worth Rs. 1,500,- and in that regard, he was asked to come on the next date as such, according to him, he had complained about the same to the Lokayukta. Thereafter, on the day of conducting raid, he went and handed over the amount to the accused. Of course in the evidence, P.W. 5 complainant has admitted as to the fact of handing over the money to the accused and he also identified the same. The evidence of P.W. 5 complainant and the evidence of P.Ws. 6 & 7 apart from the evidence of the investigating officer is to the effect that the amount was seized from the pant pocket of the accused and the phenolphthalein solution test proved positive. What is to be considered now is whether there was acceptance by demand. 12. Of course as noted in the version of the complainant, the accused has asked the complainant to purchase Rs. 3,500/- worth army welfare tickets. Expressing his inability to purchase so many tickets, he agreed to give him Rs. 1,500/-. But this evidence depicts that it is not towards purchase of army welfare tickets as is noted in his chief examination but however, this witness turned hostile. He was also cross-examined by the prosecution. Even in his cross-examination, his evidence goes to show that any amount given to the accused was in respect of purchase of army welfare tickets but, he says it is in the form of bribe. This evidence depicts the fact that the amount given by the complainant is towards bribe and not towards purchase of army welfare tickets. However, surprisingly, this witness has given different versions when once again cross-examined by the defence to the effect that since he was unable to purchase army welfare tickets worth Rs. 3,500/- as demanded by the accused, but he was prepared to purchase tickets worth Rs. 1,500/-. According to the defence, as is noticed in the evidence of P.W. 5, he has admitted that since he was asked to come to the office frequently by the accused, out of anger he had given a complaint to the Lokayukta. 3,500/- as demanded by the accused, but he was prepared to purchase tickets worth Rs. 1,500/-. According to the defence, as is noticed in the evidence of P.W. 5, he has admitted that since he was asked to come to the office frequently by the accused, out of anger he had given a complaint to the Lokayukta. What is being noticed is when he gave the amount of Rs. 1,500/- to the accused, other officials and peons were there in the office. It is also noticed in the evidence, there is an admission on the part of the complainant for he giving the amount of Rs. 1,500/- to the accused, he took him to the Accountant for purchase of Army Welfare tickets and at that time the Accountant - P.W. 4 was not there. Of course, this evidence of P.W. 5 cannot be treated as worthy evidence since he is shown to be an infirm witness. But, the fact remains that the amount, even assuming is given by P.W. 5 to the accused towards purchase of Army Welfare tickets, there was no necessity for the accused to accept the amount and to take him to the Accountant P.W. 4 especially when P.W. 4 was entrusted to deal with the selling of tickets. More over, what is noticed in the evidence of P.W. 4 is that, during 1996 about 3300 army tickets were sent to their office for selling and they were to be distributed in all the five sub-divisions and in that regard, they had already sold 440 tickets and collected Rs. 880/- and this work was not entrusted to the accused Khaleel Ahmed. 13. This fact depicts that there were no such tickets remaining to be purchased by the accused for the complainant as no such tickets were there to be sold in the office of the Executive Engineer. It is also to be seen that nothing has been elicited in the cross-examination of P.W. 4 that there were tickets still remaining to be sold and he has clearly stated the remaining tickets were distributed in the other sub-divisions. In the circumstances, the defence of the accused that he took the complainant to get the tickets worth Rs. 1,500/- does not stand to reason. In the circumstances, the defence of the accused that he took the complainant to get the tickets worth Rs. 1,500/- does not stand to reason. When once the amount is in the hands of the accused and also it is noticed, the plausible explanation given by the accused by way of rebuttal evidence cannot be accepted, then what remains to be seen is whether the presumption can be drawn against the accused regarding his guilt of demanding and accepting the amount. 14. In this regard, learned counsel for the accused has relied upon two decisions - one of the Apex Court and another of the Himachal Pradesh High Court, to contend that there is no independent evidence regarding acceptance of the amount. Of course, ultimately when it is the stand of the accused that the amount he has received is only towards getting army welfare tickets to the complainant PW5, and when admittedly the amount was in the hands of the accused, he failed to rebut the presumption in view of the fact that there was no such army welfare tickets to be disbursed as by that time, already 440 tickets were disposed of out of 3300 tickets and the remaining tickets were distributed to the other five sub divisions. In the circumstances and also in view of the admitted fact that the amount was already in the hands of the accused when seized in regard to which there is no plausible explanation given by the accused and the accused has not rebutted the presumption, then as per S. 20 of the Prevention of Corruption Act, the accused has to be held guilty of acceptance of the said amount towards illegal gratification more so, in view of the fact that he was having a file which was said to be seized, in connection with the issuance of certificate which he had to place before the Executive Engineer for certification. It has also to be seen in this regard that there is an admission on the part of the Executive Engineer- PW8 that the accused has not been entrusted with the assessment/fixation of the rent, nonetheless, the accused was found with the file and all these point towards the accused that he demanded and collected money as an illegal gratification and not towards purchase of army welfare tickets as a matter of compulsion on the part of the complainant. In the circumstances, the order of acquittal passed by the Special Judge is without looking into the provisions of S. 20 of the Prevention of Corruption Act and the same requires interference at the hands of this Court and to draw a presumption against the accused to hold him guilty of the offence under S. 7 & S. 13(1)(d) r/w S. 13(2) of the Prevention of Corruption Act. 15. Accordingly, while reversing the finding of the order of acquittal, accused is held guilty of the above said offences. The accused is sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 1,500/- in default, to undergo simple imprisonment for one month for the offence under S. 13(1)(d) r/w S. 13 (2) of the Prevention of Corruption Act. Further, the accused is also sentenced to undergo simple imprisonment for one year for the offence under S. 7 of the Act and to pay a fine of Rs. 2000/- in default, to undergo simple imprisonment for one month. Both the sentences are ordered to run concurrently. 16. Appeal is allowed. 17. Appeal allowed.