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Karnataka High Court · body

2011 DIGILAW 785 (KAR)

Mamtaz Begum v. State of Karnataka

2011-08-04

B.V.PINTO

body2011
JUDGMENT 1. This appeal is filed challenging the judgment dated 30.11.2005 passed by the Principal Sessions and Special Judge, Dharwad in Special (SVC) Criminal Case No.6/1997, convicting the appellant for the offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing her to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for two months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and further sentencing her to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.3,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 with the further direction to run substantive sentences concurrently. 2. It is the case of the complainant – Lokayukta Police that the appellant being a public servant employed as Headmistress of Boys Urdu Primary School No.5, Bora – Imam Galli, Dharwad, on 07.12.1995 demanded and agreed to accept a sum of Rs.500/- from the complainant – Bashasab Khadarsab Hubballi of Dharwad, as illegal gratification for issuing a marks-card of 4th standard and Transfer Certificate in respect of the complainant, thereby she is alleged to have committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. It is further charged against the accused that being a public servant, employed as a Headmistress of Boys Urdu Primary School, Dharwad, on 07.12.1995 at about 14:10 hours in her office room at Dharwad, in furtherance of her demand, she accepted a sum of Rs.500/-, by corrupt or illegal means or by using her position as a public servant and thereby obtained pecuniary advantage of Rs.500/- to herself, which amount is other than the legal remuneration, as a motive or reward for her official favour referred to above, thereby the accused is alleged to have committed criminal misconduct, which is an offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The prosecution in order to prove the case has examined in all six witnesses and got marked Exs.P-1 to P-35 and produced M.Os.1 to 10. The defence of the accused was one of the total denial. 3. The prosecution in order to prove the case has examined in all six witnesses and got marked Exs.P-1 to P-35 and produced M.Os.1 to 10. The defence of the accused was one of the total denial. However, by the impugned judgment, the learned Special Judge was pleased to hold the accused guilty and sentenced her, as hereinbefore mentioned. The convicted accused has filed this appeal. 4. Heard Shri B.V. Somapur, learned counsel appearing for the accused – appellant and Shri M.B, Gundawade, learned counsel appearing the respondent – Lokayukta. 5. The learned counsel for the appellant submits that the prosecution has not proved the ingredients under Section 7 of the Prevention of Corruption Act, 1988 and the prosecution has not produced cogent and clear evidence regarding the demand of illegal gratification. He submits that the evidence of the complainant – P.W.4 – Bashasab Khadarsab Hubballi, is contrary to the averments made by him in the complaint. He further submits that the complainant has not stated before the Court that the accused has demanded the amount of Rs.500/- for issuing the marks-card of the complainant. He further submits that the shadow witness P.W.1 – Smt. Venku Sanjeevappa Adagal, has also not spoken in clear terms regarding demand made by the accused for issuing the marks-card of the complainant – P.W.4. On the other hand, it is elicited from the mouth of P.W.4 that one teacher by name Tahsildar, had met the complainant on the previous day and it is the said Tahasildhar, who has mentioned that the work of the complainant would be done, if he were to spend Rs.500/. It is further brought to the notice that P.W.4 – the complainant has stated that he had met the teacher Tahasildhar and had handed over the sum of Rs.500/- to the said teacher Tahasildhar, who was present in the office room of the school. The prosecution has not proved that the accused has accepted the amount of illegal gratification from the complainant and therefore, the accused deserves to be acquitted. He further submits that the complainant has stated that he has signed recovery mahazar in the office of the Lokayukta and not at the place where the trap was laid. Hence, the evidence of P.W.4 is not trustworthy. Besides the prosecution treating him as hostile, he also submits that shadow witness P.W.1 has also been treated hostile by the prosecution. He further submits that the complainant has stated that he has signed recovery mahazar in the office of the Lokayukta and not at the place where the trap was laid. Hence, the evidence of P.W.4 is not trustworthy. Besides the prosecution treating him as hostile, he also submits that shadow witness P.W.1 has also been treated hostile by the prosecution. Hence, he submits that a conviction cannot be based on the evidence of P.W.1 and P.W.4 and therefore, he submits that the appellant is entitled for an order of acquittal. 6. The learned counsel for the respondent submits that the complaint given by P.W.4, clearly indicates that the appellant had asked for Rs.500/- as illegal gratification for issuing marks-card of the complainant and that this averment in the complaint has been corroborated by the evidence of P.W.1 and P.W.4 on one hand and also from the evidence of P.W.3 and P.W.6, who have categorically stated that the amount which was entrusted in the hands of the complainant as per the entrustment mahazar was recovered from the purse belonging to the appellant. Therefore, the accused being a public servant has accepted the money and therefore, criminal misconduct is proved against her. He therefore submits that the appeal may be dismissed by confirming the order of conviction and sentence. 7. The proceedings in this case commenced with the filing of a complaint of P.W.4 before the Lokayukta Police, Dharwad as per Ex.P13. P.W.4 – Bashasab Khadarsab Hubballi, has stated in the complaint that he is working as a Driver in K.S.R.T.C. He has studied up to 4th standard in Boys Urdu School No.5, Bora – Imam Galli, Dharwad. He was in need of the statement of marks and also School Leaving Certificate, for producing the same before the K.S.R.T.C., at the time of interview. He has passed the 4th standard from the aforesaid School in the year 1972-73. He had given an application seeking the copies of the said documents to the accused, who was the Headmistress of the said School. The accused has demanded a sum of Rs.500/- as bribe for issuing the certificates. Though he has requested the accused repeatedly, the accused asked him to bring the money within 01:00 p.m. on that day. Since there was no interest in giving bribe, he approached the Lokayukta Police requesting for taking action against the accused. The accused has demanded a sum of Rs.500/- as bribe for issuing the certificates. Though he has requested the accused repeatedly, the accused asked him to bring the money within 01:00 p.m. on that day. Since there was no interest in giving bribe, he approached the Lokayukta Police requesting for taking action against the accused. The Lokayukta Police registered the said complaint in their Crime No.32/1995 for the offences punishable under Section 7 and Section 13(1)(d), read with Section 13(2) of the Prevention of Corruption Act, 1988 and transmitted the First Information Report in the Court. Thereafter, P.W.6 – Inspector of Lokayukta summoned P.W.1 and requested her to Act as a shadow witness. Thereafter, he laid a trap along with P.W.3 and P.W.4. After laying the trap in which the accused was caught red handed, P.W.6 continued the investigation and on receipt of sanction issued by P.W.5, P.W.6 has filed the charge sheet in this case. 8. P.W.1 – Smt. Venku Snajeevappa Adagal is the First Division Assistant in the Minor Irrigation Department, Dharwad. She has acted as a shadow witness and has signed the entrustment mahazar, which is marked as Ex.P-1. She has deposed before the Court that on the date of the incident, she had accompanied P.W.3 and P.W.4 along with the Inspector Lokayukta to the Urdu Primary School No.5, Bora-Imam Galli, Darwad. It is in her evidence that after reaching the room, where the accused was sitting, she was standing outside the door of the said room and the remaining members of the raiding party, were at some distance from the School. Thereafter, the complainant went to the said Madam and asked her to give the School Leaving Certificate. The said Madam told the complainant that she will give the School Leaving Certificate. It appears that the said Madam asked the appellant whether he has brought the money. The complainant told that he has brought the money. The complainant gave the amount to the said Madam, who received the same and kept it in her purse. Thereafter, the complainant came out from the room and gave a signal by wiping his face with the kerchief. The Inspector and others thereafter came inside the room and the notes given by the complainant were found in the possession of the accused. Thereafter, the formalities of trap were completed. Thereafter, the complainant came out from the room and gave a signal by wiping his face with the kerchief. The Inspector and others thereafter came inside the room and the notes given by the complainant were found in the possession of the accused. Thereafter, the formalities of trap were completed. This P.W.1 has been treated hostile regarding her evidence that the accused took out the amount from her purse and thrown it on the ground and that P.W.1 picked up the said amount as per the instruction of Police Inspector. Thereafter, they compared the numbers of the notes and they were tallied with the numbers already noted down in the entrustment mahazar. However, this witness has been treated hostile by the prosecution. In the cross-examination, it is suggested that she has deposed falsely at the instance of the Police and at no point of time, the accused either demanded or accepted the sum of Rs.500/- as was sought to be made out from her evidence. The said suggestions are denied by P.W.1. 9. P.W.2 – Shankar Neelappa Sogi, is the Second Division Assistant in the P.W.D. Office, at Ron. He has stated that on 07.12.1995, he was deputed to the Lokayukta Office to assist the Police in their investigation. He has spoken to about the entrustment mahazar. He has signed the entrustment mahazar. He has also spoken regarding the complainant being asked to go to the room of the accused and observe the happening at the time of raiding. Immediately after the complainant handed over the money to the accused, himself and others rushed to the room of the accused. Thereafter, it was found that the money, which was given as per entrustment mahazar, was found in the possession of accused, which was in the purse of the accused and she produced the same. It is stated by him that the accused removed the money from her purse and thrown the same into the ground and it was recovered by the Lokayukta Police, from the ground. He has signed the Ex.P-3 – recovery mahazar, prepared in the school where the appellant is working. 10. P.W.3 – Mohammad Hussain, is the Dhalayat in the Lokayukta Police and he has taken the First Information Report to the Court. 11. P.W.4 – Bashasab Kadarsab Hubballi, is the complainant. He has spoken regarding the facts of the complaint. He has signed the Ex.P-3 – recovery mahazar, prepared in the school where the appellant is working. 10. P.W.3 – Mohammad Hussain, is the Dhalayat in the Lokayukta Police and he has taken the First Information Report to the Court. 11. P.W.4 – Bashasab Kadarsab Hubballi, is the complainant. He has spoken regarding the facts of the complaint. In respect of the incident of handing over the money, he has stated as follows:- “4. On 06.12.95 at about 3.00 p.m. I went to the Lokayukta office. I told the Lokayukta Police that Tahasildhar teacher has told me that I am required to give Rs.500/- for getting my marks card and certificate and I am unable to pay Rs.500/-. The Lokayukta Police asked me to inquire with the concerned teacher, if I give Rs.500/- whether my work will be done. I went and met Tahasildhar Teacher and asked him that if I pay Rs.500/- whether my work will be done. Tahasildhar teacher told me that if I give Rs.500/- my work will be done. I went back to Lokayukta police station and informed the police that Tahasildhar Teacher has told me that if I give Rs.500/- my work will be done. The Inspector Lokayukta told me that he will give Rs.500/- and I can give the said amount to the accused and get my work done. 10. Two Lokayukta inspectors, 6 to 7 persons who were in Lokayukta Police station and myself proceeded to the school o the accused in a jeep. The jeep was stopped at a distance of about 150 ft. from the said school. I was asked to go to the school and that they will follow me. I went to the room where the accused and Tahasildhar teacher were sitting. I told Tahasildhar teacher that I will give money and I may be given my documents. The said teacher told me to sit down and he told me that he will get the documents prepared from the accused. I handed over MO7 bribe amount to the said Tahasildhar Teacher. Tahasildhar Teacher told me that he will give said amount to the accused. I gave signal to the Lokayukta police by wiping my face with the kerchief. I told the police that I have given the amount in the hands of Tahasildhar teacher and he is giving the said amount to the accused. Tahasildhar Teacher told me that he will give said amount to the accused. I gave signal to the Lokayukta police by wiping my face with the kerchief. I told the police that I have given the amount in the hands of Tahasildhar teacher and he is giving the said amount to the accused. I told the police that the accused has kept the bribe amount in her purse. Now I see MO10 the purse of the accused. In this purse the accused had kept the amount. Tahasildhar teacher gave the amount to the accused and accused after receiving the said amount kept it in her bag. The Tahasildhar teacher asked why I brought the Lokayukta police when he was getting the certificate. I told Tahasildhar Teacher that I was not having money to pay and I have received the said amount from the Lokayukta police and given it to them”. 12. However, the prosecution has treated P.W.4 hostile and thereafter he was cross-examined. It is suggested to P.W.4 that he has filed false complaint before the Police and that he has not paid any amount to the accused. 13. P.W.5 is the Commissioner for Public Instruction, Government of Karnataka, Bangalore and he is the Appointing Authority so far as the accused is concerned. He has given sanction to prosecute the accused. 14. P.W.6 is the Inspector of Police, Karnataka Lokayukta, Belgaum. He has received the complaint from P.W.4, registered the same in Crime No.13/1992. Thereafter, prepared the entrustment mahazar by summoning P.W.1 and P.W.2, conducted the raid and after investigating the matter, filed the charge sheet against the accused, after obtaining sanction from the Appointing Authority. 15. It is from the evidence of these witnesses that the learned special Judge has convicted the accused and has sentenced her as mentioned above. 16. The learned counsel appearing for the Lokayukta has submitted the following decisions reported in 2001 Supreme Court Cases (Criminal) 34 (Madhukar Bhaskarrao Joshi vs. State of Maharashtra) held as follows:- “A. Prevention of Corruption Act, 1947 – S.4(12) – “Gratification” – Meaning – Presumption – Once prosecution establishes that gratification was paid and accepted by public servant, presumption arises that it was paid and accepted as a motive or reward to do or forbear from doing any official act – Words and Phrases – “Gratification” Prevention of Corruption Act, 1988, Ss.20 and 7”. In (2010) 1 Supreme Court Cases (Criminal) 147 (Krishna Ram vs. State of Rajasthan) it is held as follows:- “A. Prevention of Corruption Act, 1988 – Ss.7 and 13(1)(d) read with Section 13(2) and S.20 – Presumption under S.20 – Demand of Rs.500 by Patwari (public servant) for giving favourable report in regard to allotment of lands on permanent leasehold rights, alleged – Currency notes treated with phenolphthalein powder recovered.” 17. He submits that in view of the evidence of P.W.1, P.W.2 and P.W.4, it is established that the appellant had received the money, which was entrusted to the complainant as per the entrustment mahazar. Hence, the offence under Section 13(1)(d) has been proved beyond all reasonable doubt and hence, he submits that the order of conviction passed against the appellant may be confirmed by dismissing the appeal. 18. On a careful appreciation of the entire materials on record, it is seen that the evidence of the complainant – P.W.4 clearly indicates that when for the first time he went to the school of the accused, one Tahasildhar Teacher had informed him that he would give the certificate, if he were to spend Rs.500/-. Subsequently, when the trap was laid the complainant – P.W.4 has stated that it is the said Tahasildar Teacher, who has accepted the money and has received the same. Though, it is his case, that thereafter the money was given to the accused, the version of P.W.4 in the Court is different from the version given by him in the complaint and also the version found in the trap mahazar. Further, P.W.1 states that, “it appears that the accused had asked for money”, without categorically stating that the accused has demanded the money from P.W.4. Since this evidence goes to the very root of the case, doubt is created regarding the demand said to have been made by the accused to the complainant – P.W.4. Unless both demand and acceptance is proved by the prosecution beyond all reasonable doubt, the accused cannot be convicted for the offence under Sections 7 or 13 of the Prevention of Corruption Act, 1988. Strict observance of the requirements of law are to be complied in respect of the prosecution in the Prevention of Corruption Act, 1988. Unless both demand and acceptance is proved by the prosecution beyond all reasonable doubt, the accused cannot be convicted for the offence under Sections 7 or 13 of the Prevention of Corruption Act, 1988. Strict observance of the requirements of law are to be complied in respect of the prosecution in the Prevention of Corruption Act, 1988. Both P.W.1 and P.W.4 have been treated hostile by the prosecution and their version regarding demand and acceptance varies from each other and from the documentary evidence. Hence, I am of the opinion that the prosecution has not proved that the accused and the accused herself has demanded the illegal gratification of Rs.500/- from the complainant P.W.4 and the benefit of this doubt goes to the accused. 19. Accordingly, this appeal is entitled to be succeeded. Consequently, this appeal is allowed. The order of conviction recorded against the accused is here be set aside and the accused is acquitted of the offence charged against him. Bail bonds executed by her is discharged. Fine amount if deposited shall be refunded to her.