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2010 DIGILAW 716 (KAR)

State of Karnataka v. M. Gopalakrishnaiah

2010-06-16

SUBHASH B.ADI

body2010
JUDGMENT :- Subash B. Adi, J: This appeal is by the State by Lokayukha Police against the acquittal judgment in Special C.C.No.84/1997 dated 26th September, 2001. 2. Lokayuktha Police charge sheeted the accused Nos.1 to 3 for an offence punishable under sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short referred to as ‘the Act’). 3. Case of the prosecution is that, complainant- PW-3 is an Advocate, CW-4 one Rukminiyamma was his client. He knew the accused. CW-4 had applied for change of khata before the Bangalore Mahanagarapalike in respect of property bearing old No.101, new no.19, 3rd Cross, Maruthi Extension, Srirampuram, Bangalore. Though said application was filed on 28.12.1994, till February 1996, no action had been taken. It is in this regard, PW-3 on behalf of CW-4 went to the office of accused No.1 on 22.2.1996, however, accused No.1 pretended that they want the earlier application dated 28.12.1994. On 7.3.1996, PW-3 gave three more applications to accused No.1. All the three applications are in relation to property of CW-4. Applications were filed by CW-4. V.Rangarajulu Naidu and other by Sunderrajulu Naidu. Since 7.3.1996, the accused No.1 was postponing the consideration of application of Cw-4 in the month of June 1996, accused No.1 forced the PW-3 to pay amount of Rs.25,000/- for the purpose of transfer of khata in favour of CW-4 and others. Since PW-3 did not pay the said amount, accused no.1 referred the applications for legal opinion. Accused No.1 was in the habit of not giving any endorsement. In September 1996, file came back to accused No.1 from the legal Department. Legal Department opined that the applicants are entitled for change of khata. Since September 1996 to November 1996, accused no.1 did not take any action on the said application. On 4.11.1996, complainant met accused Nos.1 to 3, all the accused persons demanded Rs.25,000/- from the complainant for charge of khata and it was agreed that initial payment was to be made at Rs.5,000/- Rs.1,000/- to accused no.1 and Rs.2,000/- to accused Nos.2 and 3 each. On 6.11.1996, accused No.1 told the complainant that, even if he is not in the office, complainant may pay the said amount of Rs.1,000/- to accused No.2 and he would collect it. 4. On 6.11.1996, accused No.1 told the complainant that, even if he is not in the office, complainant may pay the said amount of Rs.1,000/- to accused No.2 and he would collect it. 4. On 6.11.1996, PW-3 went to the office of the Lokayukha, lodged a complaint, as he was not willing to pay bribe amount. Complaint was registered as per Ex.P7. The Deputy Superintendent of Police-PW-8 referred the complaint to the Inspector-PW-10. PW-10 called the panchas PWs-1 and 2, prepared the entrustment mahazar Ex.P1, went in a car along with PW-10 at about 5.53 p.m. Accused No.1 was not there in the office, accused Nos.2 and 3 asked the complainant as to whether he has brought the money. They came out of the office and took the complainant along with PW-1 to Hotel Krishna Bhavan where they had coffee, while returning from hotel, accused Nos.2 and 3 demanded money. Accordingly, PW-3 paid Rs.3,000/- i.e., Rs.1,000/- payable to accused No.1 and Rs.2,000/- to accused No.2 and he kept that money in his pocket and paid Rs.2,000/- to accused No.3, thereafter gave a signal to the Police by wiping his face, immediately PW-10 rushed to the spot and disclosed the identity to accused Nos.2 and 3. He took accused Nos.2 and 3 to the office of the accused no.1. where trap panchanama was prepared and completed the other formalities. Accused No.2 washed his hand and it turned into brown in colour and the hand of accused No.3 also separately washed, which turned into pink. Seizure mahazar was drawn as per Ex.P2. Documents were seized as per Ex.P3 series. Currency notes were seized as per M.Os.9 and 11 and recovery at M.Os.8 and 10. The pant of accused Nos.2 and 3 were seized as per M.O.15 and 17 respectively in sealed covers at M.Os.14 and 16. 5. PW-10 on completion of the investigation filed the charge sheet for an offence punishable under Sections 7, 13(1)(d) read Section 13(2) of the Act. 6. Prosecution in order to prove the offence, examined PWs-1 to 10, marked Exs.P1 to P16 and produced M.Os.1 to 2. However, no evidence on defence side was led. 7. PWs-1 and 2 are the panch witnesses to the trap, PW-3 is the complainant, PW-4 is an Assistant Engineer, PWD, who prepared the spot sketch as per Ex.P8. PW-5 is sanctioning authority for prosecution. PW-6 is the nephew of Rukminiyamma. However, no evidence on defence side was led. 7. PWs-1 and 2 are the panch witnesses to the trap, PW-3 is the complainant, PW-4 is an Assistant Engineer, PWD, who prepared the spot sketch as per Ex.P8. PW-5 is sanctioning authority for prosecution. PW-6 is the nephew of Rukminiyamma. PW-7 is the Manager of City Corporation in A.R.O’s office at Gayathrinagar, PW-8 is the Investigating officer, who entrusted the investigation to PW-10. PW-9 is the Revenue Officer of the Bangalore Mahanagara Palike and PW-10 is the Investigating Officer. 8. Trial Court on appreciation of the entire evidence found that the prosecution has failed to prove the demand of bribe and acceptance. It also held that the prosecution failed to prove proper entrustment. It further held that the prosecution has failed to prove the charge beyond reasonable doubt and acquitted the accused. It is against the said judgment of acquittal, the State has filed this appeal. 9. During the pendency of the appeal, accused No.1 died on 7.7.2008 A memo to the said effect is filed before the Court and the appeal as against accused no.1 treated as abated. 10. Heard Sri.S.G.Rajendra Reddy, learned Counsel for the appellant, Sri.M.Rudraiah, learned Counsel for respondent No.2 and Sri.C.G.Sundar, learned Counsel for respondent No.3. 11. Sri.Rajendra Reddy, learned Counsel for the appellant submitted that, PW-3 is the complainant. He filed a complaint on 6.11.1996 at 17 hours. As per Ex.P7, immediately PWs-1 and 2 were called to the office of PW-10 and PW-10 prepared the entrustment mahazar as per Ex.P1 and went to the office of the accused. Accused Nos.2 and 3 were present, both the accused come out of the office along with PW-1 and PW-3, all went to Hotel Krishna Bhavan. While coming, accused demanded the money, the complainant PW-3 paid Rs.3,000/- to accused No.2, Rs.2,000/-to accused No.3 and gave a signal, immediately PW-10 went to the spot, after disclosing the identity took accused Nos.2 and 3 to their office and after conducting the test, prepared the trap mahazar Ex.P2 and test was found positive, currency notes were seized as per M.Os.9 and 11. This evidence proves offence alleged under Section 13 sub-section (1) clause (d) of the Act, accused Nos.2 and 3 were found in possession of currency notes, which were used for trap of the accused. This evidence proves offence alleged under Section 13 sub-section (1) clause (d) of the Act, accused Nos.2 and 3 were found in possession of currency notes, which were used for trap of the accused. To support the demand and acceptance of bribe as illegal gratification to get a favour to the complainant, PW-3-complainant has been examined and he has categorically stated that he had gone to the office of accused No.1 and accused No.1 demanded Rs.25,000/- matter was settled at Rs.5,000/- and out of Rs.5,000/- Rs.1,000/- was to be paid to accused No.1 and Rs.2,000/- each to be paid to accused Nos.2 and 3 Accordingly, accused Nos.2 and 3 had collected Rs.3,000/-and Rs.2,000/- respectively. The same is clear from Ex.P2 trap mahazar. Ex.p1-entrusttment mahazar clearly shows the denomination of the currency notes and trap mahazar test being positive, this evidence is sufficient to prove the charge against the accused. Prosecution further to support the case of PW-3 has also examined PWs-1 and 2, both have supported the prosecution case. PWs.-1 and 2 are the panchas. PW-1 is a shadow witness, who went along with complainant to hotel and he was present and he has spoken of the demand and acceptance of money. These circumstances and the evidence of PWs-1 and 3 coupled with evidence of PW-10-Investigating Officer, who conducted the trap, immediately caught accused Nos.2 and 3. This evidence leaves no doubt as to the proof of offence under Section 13(1)(d) of the Act. 12. He submitted that, the trial Court without appreciating the evidence of PW-3, PWs.-1 and 2 and the evidence of PW-10 has erroneously acquitted the accused. He also submitted the, the accused Nos.2 and 3 to show official favour to get the khata changed in the name of CW-4 and others had made a demand. Fact that the amount was found in the possession of accused Nos.2 and 3 does not leave any doubt as regard to the collection of money and as regard to the official favour, as there was an application of CW-4 pending for change of khata and the evidence of PW-3 clearly shows that, for the said purpose, the accused No.1 had made a demand of Rs.25,000/- when demand, acceptance and recovery is proved beyond reasonable doubt, the trial Court was not justified in acquitting the accused. He relied on Exs.P1.P2, M.Os.9 and 11 to point out that the trap was properly conducted and recovery was made and both the panch witnesses viz., shadow witnesses PWs-1 and 2 have supported the prosecution. 13. Sri.Sundar, learned Counsel appearing for accused No.3 submitted that, this appeal is against the judgment of acquittal. Even if two views are possible, this Court will not interfere with the judgment of acquittal. Further submitted that, prosecution in order to prove the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act must prove the demand, acceptance and recovery. PW-3 is the complainant., he is not the person, who made an application for change of khata, there is no document to show that CW-4 has entrusted the matter to PW-3. Though CW-4 is cited as prosecution witness in the charge sheet, she has not been examined. He submitted that, in the entire evidence of PW-3 he has not stated as to how accused Nos.2 and 3 are connected with the file of transfer of khata. 14. In support of his contention, he relied on the evidence of PW-3 and submitted that, PW-3 in his examination-in-chief itself has stated that, application was pending with the accused No.1 and accused No.1 demanded Rs.25,000/- Though he refers the names of accused Nos.2 and 3, but has not stated as to how they are connected with the file of CW-4, in turn, he categorically admits that, accused Nos.2 and 3 expressed their haplessness as file had gone for legal opinion. He further referred to the cross-examination of PW-3 and submitted that, in the cross-examination at para 61, complainant admits that PW-3 is not competent authority to change the khata in Bangalore mahanagara Palike and he admits that accused No.3 is a Tax Collection Inspector and he has no competency to change the khata of the property. He further relied on the cross-examination of PW-3 at para-73 wherein PW-3 further admits that accused No.3 is a bill collector and he had no connection with the file and in the capacity of bill collector, accused No.3 has not done anything with reference to the concerned file and he was working in a separate office and not under accused No.1l. 15. 15. He also referred to the conduct of the complainant and submitted that, at para-75 of the cross-examination of PW-3 a suggestion is made that the complainant is in the habit of lodging complaints against the public servants. At Para-50, complainant admits that he had lodged a complaint earlier also against the sub-Registrar of Bangalore North Taluk and pleads ignorance as regards to the filing of ‘B’ report. Referring to this evidence, Sri.Sundar further submitted that, the prosecution has not proved any nexus between accused No.1 on one hand and accused Nos.2 and 3 on the other hand. He also submitted that, accused Nos.2 and 3 were not connected with the file and this fact is admitted by PW-3. PW-3 alleged that application of CW-4 was pending before accused No.1 and it is also admitted that, file was sent for legal opinion and legal opinion was that the applicants are entitled for change of khata, there was no requirement of official favour to be shown either by accused no.1 or by accused Nos.2 and 3. Merely because the amounts is found in the pocket of accused Nos.2 and 3, that will not prove the offence punishable either under Section 7 or under Section 13(2) of the Act. Unless it is shown that accused Nos.2 and 3 abusing their position as public servant have done something in lieu collection of bribe, however, the evidence of PW-3 clearly shows that accused Nos.2 and 3 were not holding the file nor they were working for accused No.1 in connection with demand of alleged bribe. If the demand itself is not proved and if there is no official favour to be shown by accused Nos.2 and 3, the acceptance of the alleged amount not being in the office and being in the public place within the visibility of PW-10-Investgating officer, it is highly that the accused Nos.2 and 3 might have collected said amount in connection with change of khata of CW-4. 16. Prosecution has utterly failed to prove the said aspect as regard to the preparation of trap mahazar. 16. Prosecution has utterly failed to prove the said aspect as regard to the preparation of trap mahazar. He also pointed out from the evidence of PW-7 and submitted that, PW-7 in her examination in-chief at para-2 has stated that, on 6.11.1996 office was closed at 5.30 p.m., however, trap mahazar was prepared in the office between 6.15 p.m. and 8 p.m. There is no evidence to show whether the office was open at that time and particularly when PW-7 admitted that office was closed at 5.30 p.m. Prosecution has not led any evidence to show that office was kept open till 8 p.m. 17. As regard to the veracity of PW-1-shadow witness, he pointed out that, 7 times he was called by the Lokayuktha Police for the purpose of conducting raid. Relying on this statement, he submitted that, PW-1 cannot be treated as an independent witness as he is a stock witness used for the purpose of conducting raid. In such cases, doubt arises as regard to the correctness of his statement. He also relied on the evidence of PW-10 to show that PW-3 complainant had not stated in his statement before the Investigating Officer as regard to PW-1 entering the A.R.O’s office and accused Nos.2 and 3 asking for money and that he took the accused persons along with PW-1 to Hotel Krishna Bhavan and accused No.3 produced amount of Rs.2,000/- from his pocket and accused Nos.2 and 3 asked PW-1 as to whether he has brought the first instalment amount. He pointed out that, at paragraphs- 29, 30 and 31 of the evidence of PW-10-Investigating Officer he has tried to improve the case, which was not even stated by PW-3 in his statement before him and these improvements are material improvements and such evidence cannot be relied to prove the prosecution case of demand and acceptance. 18. To support his case, he relied on the judgment of the Apex Court reported in 1985 SCC Crime Page 24 in the matter of Khilli Ram Vs State of Rajasthan to submit that, the prosecution case that the bribe amount was paid in public place i.e., in the public view, is highly improbable to accept. He also relied on a judgment reported in (2010) 1 SCC (CRI) 607 in the matter of State of Rajasthan Vs. He also relied on a judgment reported in (2010) 1 SCC (CRI) 607 in the matter of State of Rajasthan Vs. Mohan Lal and submitted that, unless the judgment of the Trial Court is perverse or the Court has obstinately blundered or is a distorted conclusion as to produce a positive miscarriage of justice or the conclusion is not reasonable based on the evidence, the appellate Court should be slow in interfering with the judgment of acquittal. Just because it is possible to take another view, it is not open to the appellate Court to interfere with the acquittal judgment unless it is shown that the judgment is perverse or has resulted in miscarriage of justice. He also relied on another judgment reported in 1996 SCC (CRI) 102 in the matter of State by Special Police Establishment Vs. D.Krishnamurthy and submitted that, unless the complainant shows that there is abuse of position as a public servant, merely because the amount is collected that by itself will not amount to an offence punishable either under Section 7 or Section 13(2) of the Act. He submitted that, the trial Court on an elaborate consideration of the entire evidence and formulating points has dealt with every aspect of the matter and there is no error pointed out by the learned Counsel for the appellant much less any perversity in the judgment. In such circumstances, the appeal is liable to be dismissed. 19. Specific case of the prosecution is that, CW-4 and others had made applications before the accused No.1 for change of khata in 1994 and the said applications were pending before him. PW-3 claims that, he is an Advocate and he was pursuing the applications. According to the evidence of PW-3 he for the first time met accused No.1 on 22.2.1996 and it is his categorical case that accused No.1 made a demand of Rs.25,000/- and it is also his case that, for non-payment of the said amount, accused No.1 referred to the matter for legal opinion. From the evidence of PW-3 it is clear that accused Nos.2 and 3 were not dealing with the concerned file. He admits that, on reference of the file to the Legal Department, accused Nos.2 and 3 expressed their inability to do anything. From the evidence of PW-3 it is clear that accused Nos.2 and 3 were not dealing with the concerned file. He admits that, on reference of the file to the Legal Department, accused Nos.2 and 3 expressed their inability to do anything. It has come in the cross-examination of PW-3 that accused No.3 is a Tax Collector and he is not dealing with the file and accused No.2 is Revenue Inspector. PW-3 admits that, accused No.3 has no competence to pass any order on the application for change of khata. He also admits that, he has no capacity to do anything with reference to the file. The evidence of PW-3 being vital, it is clear from his evidence that, accused Nos.2 and 3 had no power to pass any order to favour the complainant. Further, PW-3 does not state as to what is the favour that is sought for from accused Nos.2 and 3, in a stray sentence, it is mentioned that accused No.1 asked accused Nos.2 and 3 to collect money even in his absence. There is no evidence as to why amount was not offered to accused No.1 and what was the entrustment made by accused No.1 to accused Nos.2 and 3. No doubt, PW-3 states that accused Nos.2 and 3 came along with him to hotel and after having coffee, they came out and after coming from the hotel, they paid the amount. PW-10-Investigating Officer in his cross-examination admits that, the making of the payment was visible to him. However, he has not stated that there was any demand and acceptance of the amount. 20. Evidence of PW-3 creates serious doubt as to whether the accused Nos.2 and 3 did made the demand to make official favour to PW-3 and in connection with the same, they collected the amount. In this regard it is necessary to consider the evidence of PW-3. PW-3 has admitted that the application was given by CW-4. CW-4 is a witness in the charge sheet, however, there is no explanation as to why CW-4 is not examined. PW-3 has also not produced any document to show that, he has been authorised to work on behalf of CW-4. No doubt, PW-6 witness has been examined and he states that, PW-3 was working for them, but it is the specific case of PW-3 that, CW-4 entrusted the work to him. PW-3 has also not produced any document to show that, he has been authorised to work on behalf of CW-4. No doubt, PW-6 witness has been examined and he states that, PW-3 was working for them, but it is the specific case of PW-3 that, CW-4 entrusted the work to him. The conduct of the PW-3 is revealed in his evidence at para-50 wherein he admits that, he has filed similar case against Sub-Registrar. Bangalore North Taluk and pleads ignorance as regards to the filing of ‘B’ report. The evidence of PW-3 coupled with the evidence of PW-1, who is a shadow witness, who accompanied accused nos.2 and 3 to the hotel shows that the PW-I was present at the time of demand and acceptance. PW-1 in his evidence admits that, he had participated in seven trap cases investigated by Lokayuktha Police, in this regard, learned Counsel appearing for accused No.3 relied on the judgment of the Apex Court reported in 1995 CRL.L.J. 3623 in the matter of State of Gujarat Through C.B.I. Vs. Kumudchandra Pranjivan Shah and pointed out that, panch witness acting as police witness in number of cases being pliable and untrustworthy and conviction could not be based on his evidence. 21. The Trial Court while appreciating the evidence has considered the evidence as regard to the demand, acceptance and recovery. The entire evidence of PW-3 goes to show that, accused Nos.2 and 3 cannot do any official favour in the matter of transfer of khata. Categorical statement is that, accused No.1 demanded money for change of khata and he was keeping the file. There is no evidence as regard to the official favour to be shown by accused Nos.2 and 3. Further. PW-3 also does not say that accused Nos.2 and 3 were demanding money for the purpose of clearing the file, in turn. PW-3’s evidence is that, they are incapable of doing anything in the matter as accused No.I has referred the matter for legal opinion. 22. Even to draw a presumption under Section 20 of the Act, the prosecution is required to prove that there was demand and acceptance. PW-3’s evidence is that, they are incapable of doing anything in the matter as accused No.I has referred the matter for legal opinion. 22. Even to draw a presumption under Section 20 of the Act, the prosecution is required to prove that there was demand and acceptance. If the demand and acceptance for the purpose of official favour is proved by the prosecution beyond reasonable doubt, the burden may shift on the accused to rebut the same, however, when initial burden of proving the demand and acceptance is not proved, the presumption under Section 20 of Act does not arise. PW-3 does not state that accused Nos.2 and 3 had demanded money for the purpose of showing official favour nor the evidence of PW-3 shows that they were acting on behalf of accused No.1. 23. Further, in the statement of PW-3 before the Police, he has not stated as regard to taking PW-I along with accused, as regard to PW-I entering A.R.O’s office, accused Nos.2 and 3 asking money, all such statements were made for the first time in the evidence of PW-10 and they are material improvements, which cannot be relied without proper corroborating evidence. 24. Even as regard to conducting of trap mahazar between 6.15 p.m. and 8.00 p.m. in the office of accused Nos.2 and 3 is also doubtful in view of the evidence of PW-7. PW7 in the examination-in-chief has stated that, office was closed at 5.30 p.m. whether thereafter the office was open or not, the prosecution case is silent on the said aspect. 25. On appreciation of the evidence of PWs-3, 1 and 10, it becomes highly improbable that money could have been paid in a busy public place i.e., the payment made by PW3 to accused Nos.2 and 3 after they coming out of the hotel and PW-10 admits that it was visible to him. It is also improbable as to whether they went to the office to prepare the trap mahazar when PW-7 state that the office was closed at 5.30 p.m. It is also improbabalize to accept the evidence of PW-1 as he admits that he was witness to 7 trap cases. If the shadow witness is a professional witness, his evidence cannot be considered as an independent witness and doubt arises as to whether the evidence of PW-1 could be accepted. If the shadow witness is a professional witness, his evidence cannot be considered as an independent witness and doubt arises as to whether the evidence of PW-1 could be accepted. It is also not corroborated with the evidence of PW-1 could be accepted. It is also not corroborated with the evidence of other witnesses. There is material contradiction in the evidence of PW-10 as the statement of PW-3 recorded by him does not reveal material things as regard to demand and acceptance. 26. From the above circumstances it is clear that the accused Nos.2 and 3 had not shown any official favour and demand is not proved, in my opinion, just because the amount was found in possession of the accused Nos.2 and 3 cannot be attributed as a bribe amount and particularly taking into consideration the circumstances and the place at which the said amount has been paid. It also creates a doubt in the mind of the Court as to whether the said amount was paid in connection with the file of CW-4 lying with accused No.1. It has to be appreciated in the context that PW-3 is not an applicant. PW3 is an Advocate and he says that he had other work with accused No.1 and in such circumstances, even if as an Advocate he had made payment to accused Nos.2 and 3, just because that payment is made and a trap is conducted, it is difficult to believe, as to whether the said amount was paid to get the official favour. There is a missing nexus between the application filed by CW-4 and the role of PW-3, there is missing nexus between accused No.1 on one hand and accused Nos.2 and 3 on the other hand and there is also missing nexus as to why the amount was paid in the public place visible to PW-10. These circumstances have been meticulously considered by the trial Court and trial Court on appreciation of the evidence has found that, the prosecution, which is required to prove its case beyond reasonable doubt on par with any other criminal case, has failed to prove the same. Learned Counsel for the appellant has not pointed out any perversity, illegality in the judgment of acquittal or has shown that it has resulted in miscarriage of justice. 27. Hence. Learned Counsel for the appellant has not pointed out any perversity, illegality in the judgment of acquittal or has shown that it has resulted in miscarriage of justice. 27. Hence. I am of the opinion that no grounds are made out to interfere with the judgment of the Trial Court. Accordingly, the appeal fails and same is dismissed.