Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 561 (KAR)

P. Gaegaiah v. State By Police Inspector

2011-06-03

V.JAGANNATHAN

body2011
JUDGMENT V. JAGANNATHAN, J.—This criminal appeal is by the accused, who has been convicted for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (‘the Act; for short) and sentenced to undergo R.I. for two years and to pay a fine of Rs. 5,000/- in respect of conviction under Section 7 and for four years R.I. and to pay a fine of Rs. 20,000/- in respect of conviction for the offence punishable under Section 13(1)(d) read with 13(2) and default sentences for non-payment of fine. 2. The case of the prosecution, in short, is that, complainant Margaret Shekhar had purchased a site measuring 15 x 50 ft. from one Lakshmaiah in Subbayanapalya, Banasawadi, Bangalore, during 1999 and she approached the Bangalore City Corporation office in October 2001 with an application for change of khatha in her name. The appellant, at the relevant time, was working as the Tax Collector of the office of the Revenue Officer, Bharathinagara B.B.M.P., and the accused demanded and accepted Rs. 5,000/- from the complainant in order to show official favour of getting the khatha in the name of the complainant. 3. The Lokayuktha police, upon complaint being lodged by P.W. 2 complainant, arranged for the trap by first holding entrustment mahazar, followed by the shadow witness accompanying the complainant and the accused being trapped after he received Rs. 5,000/- from the complainant. This in short is the alpha and omega of the case. 4. Following the appellant being charged with the aforementioned offences and the appellant pleading not guilty, the prosecution, in order to establish the charge, examined five witnesses out of whom P.W. 1 is the shadow witness, P.W. 2 is the complainant, P.W. 3 is the Junior Engineer, P.W. 4 is the sanctioning authority and P.W. 5 is the I.O. who completed the investigation leading to filing of the charge sheet. 5. After recording of the 313 statement, written explanation was given by the accused and the defence taken by him was that the amount which he received from the complainant was towards arrears of tax. The accused led no defence evidence and the trial Judge, after taking into account the oral and the documentary evidence placed as per Exs. P1 to P16 and M.Os. The accused led no defence evidence and the trial Judge, after taking into account the oral and the documentary evidence placed as per Exs. P1 to P16 and M.Os. 1 to 9 also being produced, ultimately held that the prosecution had brought home the guilt of the accused beyond all reasonable doubt, The evidence of P.W. 2 complainant was found to have been supported by that of the shadow witness and there was nothing to disbelieve the prosecution case. As far as the defence theory put forward is concerned, the learned trial Judge, for the reasons stated by him at paragraph 27 of the judgment, held that the defence theory was not probablised. The result of the aforesaid reasoning of the trial Court was the conviction and sentence passed as mentioned earlier. 6. I have heard learned senior counsel Shri B.V. Acharya for the appellant and learned counsel for the respondent-Lokayuktha Smt. T.M. Gayathri and perused the entire material on record. 7. Assailing the judgment of conviction passed, the learned senior counsel, at the outset, submitted that the appellant does not dispute the receipt, of Rs. 5,000/- by him from the complainant but, it is the specific case of the appellant that the said amount was received by him towards arrears of tax. In this connection, the evidence of P.W. 2 in particular was referred to contend that the complainant has also admitted that she was due in arrears of tax. Therefore, it is argued that the explanation given by the appellant immediately after the trap ought to have been accepted by the trial Court more so when the prosecution witnesses also speak to the fact of the complainant being in arrears of tax, 8. The next limb of argument put forward by the learned senior counsel is that, soon after the trap, the tax was collected towards the arrears and the amount collected was Rs. 1,881.36 ps. Referring to the document that is filed during the pendency of this appeal along with an application under Section 391 of the Cr. P.C. the submission made is that the said document would go to show that the tax was assessed at Rs. 1,881.36 ps. Referring to the document that is filed during the pendency of this appeal along with an application under Section 391 of the Cr. P.C. the submission made is that the said document would go to show that the tax was assessed at Rs. 1,080/- only towards the vacant site is concerned and in respect of the building that was put up to an extent of one square in the vacant land, the tax would be revised after the completion of the building that was being put up in the said vacant land. 9. It is, therefore, argued that the amount of Rs. 5,000/- collected by the accused was nothing but the amount towards arrears of tax. This evidence on record has not been considered by the learned trial Judge and when the accused has placed material to probablise his case, the trial Court ought to have accepted the said defence evidence or the defence theory put forward as the accused should have been acquitted of all the offences. The learned senior counsel also referred to the evidence of P.W. 4, sanctioning authority, as well as P.W. 5 in this connection. Under the said circumstances, the judgment of conviction and sentence passed, therefore, be set aside by giving the accused benefit of doubt. 10. On the other hand, the submission of the learned counsel for the respondent-Lokayuktha is that, the theory put forward by the accused has been held to be an improbable one by the trial Court for the reasons stated, i.e., paragraph 27 of the judgment. Secondly, it is argued that the complainant approached the accused as far back as on 17.8.2001 requesting for change of khatha in her name and the complainant also given a demand draft for a sum of Rs. 8,850/- as betterment charges. But, the accused still demanded Rs. 5,000/- as bribe and even on 24.12.2001, the said demand was made and it was followed on 26.12.2001 when once again the accused demanded Rs. 5,000/-, which was paid to him and later on, the accused was trapped. 8,850/- as betterment charges. But, the accused still demanded Rs. 5,000/- as bribe and even on 24.12.2001, the said demand was made and it was followed on 26.12.2001 when once again the accused demanded Rs. 5,000/-, which was paid to him and later on, the accused was trapped. It is argued in this connection that, if the accused had informed the complainant that he would calculate the arrears of tax and would inform her on the 19th, but when the complainant approached the accused on 19.10.2001, there was no calculation made by the accused nor was there any calculation slip shown to the complainant on 26.12.2001 when the trap was laid. 11. It is, therefore, argued by the learned counsel for the respondent-Lokayuktha that the accused took almost four months to calculate the arrears of tax when within few days of the trap, the tax was assessed at Rs. 1,881/-. Therefore, the theory put forward by the accused was rightly rejected by the learned trial Judge. It is then argued that no material was placed by the accused to show that the complainant was due in tax in a sum of Rs. 5,000/- so as to hold that what was paid by the complainant to the accused was towards the tax of Rs. 5,000/-. Under these circumstances, the trial Court committed no error in rejecting the defence theory put forward. As such, the appeal be dismissed. 12. Having thus heard both sides and after going through the evidence on record and in the light of the submissions put forward by the learned senior counsel for the appellant, one thing is not in dispute and that is receipt of Rs. 5,000/- by the accused from the complainant. Both P.W.I shadow witness and P.W. 2 complainant have stated in one voice as to the accused having received Rs. 5,000/- from the complainant and the hands of the accused when immersed in the chemical solution, it led to the change of colour of the solution. All that, therefore, will have to be examined is whether the receipt of Rs. 5,000/- by the accused can be said to be towards arrears of tax and secondly, was there absence of demand of bribe amount by the accused. 13. All that, therefore, will have to be examined is whether the receipt of Rs. 5,000/- by the accused can be said to be towards arrears of tax and secondly, was there absence of demand of bribe amount by the accused. 13. As far as the defence theory is concerned, there is no material placed to show that the complainant was due in arrears of tax to the tune of Rs. 5,000/-. In the evidence of P.W. 2, it has been brought out that when she approached the accused on 17.8.2001, the accused told her that she has to pay arrears of tax and he told her to come the following day and he would calculate and inform her about the arrears of tax. The next day, the complainant went to the office of the accused and he demanded Rs. 5,000/- from her and this has been brought out not only in the examination-in-chief of the complainant but, even in the cross-examination on behalf of the accused. The complainant has reiterated that the accused demanded Rs. 5,000/- from her and she gave the same to him. 14. Secondly, if the tax amount is Rs. 5,000/- as contended by the accused before the trial Court, there ought to have been necessary material to back up this stand taken by the accused. In view of the fact that the complainant was asked to pay arrears of tax in a sum of Rs. 1,881/- as deposed to by P.W. 4 in his cross-examination, it is unlikely that the arrears of tax would have been to the tune of Rs. 5,000/- as put forward by the accused. 15. As far as the document which has been filed by the appellant along with an application under Section 391 of the Cr. P.C. is concerned, a cursory look at the document produced viz., the tax receipt towards Rs. 1,881.86 ps., reveals that the said document does not bear the signature of any officer with regard to the shara portion is concerned. Even otherwise, the evidence on record does not even remotely give room to take the view that what was demanded and accepted by the accused viz., Rs. 5,000/- was, in fact, towards the arrears of tax. 16. Once the accused accepts the bribe amount as is the case in the case on hand, nothing more is required to be proved by the prosecution by direct evidence. 5,000/- was, in fact, towards the arrears of tax. 16. Once the accused accepts the bribe amount as is the case in the case on hand, nothing more is required to be proved by the prosecution by direct evidence. The Apex Court, in the case of B. Noha vs. Stale of Kerala, (2007) SCC (Cri) 711, has held that, when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, demand or motive, and it can only be deduced from the facts and circumstances obtained in the particular case. 17. In the case on hand, the evidence of P.W. 2 in particular, supported by P.Ws. 1 and 4, goes to show that the accused did demand and accept Rs. 5,000/-from the complainant as bribe amount, though he gave it a colour of being the amount received towards the arrears of tax. The learned trial Judge has given valid reasons at paragraph 27 of his judgment for rejecting the defence theory. 18. For the aforesaid reasons, I do not find any error being committed by the learned trial Judge in recording a finding against the accused and the said findings cannot be termed as perverse nor can it be said that it is unreasonable to take such view from the evidence on record. The conviction of the appellant, therefore, does not call for any interference. 19. Heard the learned senior counsel for the appellant and the learned counsel for the respondent-Lokayuktha on the question of sentence imposed by the trial Court. The submission made by the learned senior counsel is that the appellant has lost his job and moreover, he is also not keeping good health and only on the ground of his health condition, he was also released on bail earlier and, therefore, minimum sentence be awarded. 20. Having thus heard on the question of sentence, in my view, taking note of the special circumstances referred to by the learned senior counsel for the appellant, in the instant case, the sentence in respect of each one of the offences for which the appellant has been convicted can be reduced to one year S.I. instead of two years and four years respectively. However, the sentence of fine shall remain unaltered. 21. However, the sentence of fine shall remain unaltered. 21. The appeal is allowed in part to the extent of the sentence being reduced as mentioned above. The appellant is entitled to set off in respect of the period undergone by him if any and he shall serve out the sentence which remains. The trial Court shall take necessary steps to secure the presence of the appellant for him to serve out the sentence.