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Karnataka High Court · body

2011 DIGILAW 808 (KAR)

R. Krishna Reddy v. State By CBI, Rep.

2011-08-10

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The appellant has challenged his conviction and sentence for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (hereinafter called as ‘the Act’ for short) on a trial held by the Special Judge for CBI Cases, Bangalore. 2. Sans unnecessary details, the prosecution version unfolded during the trial is as under: The appellant, herein was working as a Chief Senior Supervisor in the office in the Plant and Engineering Department, Aerospace Division, HAL Bangalore. During the month of (sic) 2000 with a view to derive pecuniary advantage for himself by corrupt and illegal means and by abusing his official position as a public servant, said to have demanded a sum of Rs. 2,000/- on 1-6-2000 as bribe for issuing a signed acknowledgement on the delivery challan bearing No. 233 dated 1.6.2000 to the complainant P.W. 3 C.K. Ravi the proprietor of M/s. Sujatha Enterprises Bangalore for delivery of sanitary materials and further, the appellant is said to have repeated the demand of illegal gratification of Rs. 2,000/- from the complainant P.W. 3 at his office on 10-6-2000 and accepted the said bribe of Rs. 2,000/- from the complainant and thereby, is said to have committed the abovesaid offences. 3. It is relevant to note that the complainant lodged a complaint to the CBI which laid the trap on 10.6.2000 in the presence of two independent witnesses and the appellant accused was caught red handed while demanding and accepting the amount of Rs. 2,000/- from P.W. 3 and the said amount after the receipt was kept in the table drawer in a camlin pencil box and the same was produced by the independent witnesses. The notes were tallied and they were the same which were entrusted to the complainant under the entrustment mahazar Ex. P1 and thereafter a trap mahazar as per Ex. P8 was drawn. So in these circumstances, the appellant was charge-sheeted for the offences referred to supra, after recording the statements of the witnesses, collecting the documents and also on obtaining the sanction order Ex. P9 to prosecute the appellant accused. 4. During the trial, the prosecution examined 9 witnesses P.Ws. 1 to 9 and got marked the documents Exs. P1 to P15 and MOs. P9 to prosecute the appellant accused. 4. During the trial, the prosecution examined 9 witnesses P.Ws. 1 to 9 and got marked the documents Exs. P1 to P15 and MOs. 1 to 11, The statement of the appellant/accused was recorded under Section 313 Cr.P.C. He has taken the defence of total denial and he has got marked the documents Exs. D1 to D3 in the evidence of the prosecution. 5. The Trial Court after hearing the counsel for both the parties and on appreciation of the material on record held that the charges have been proved and thereafter passed an order directing the appellant to undergo rigorous imprisonment for one year and to pay fine of Rs. 8,000/-, in default, to undergo simple imprisonment for three months for the offence under Section 13(1)(d) read with 13(2) of the Act and aggrieved by the conviction and sentence, the present appeal has been preferred. 6. I have heard the learned counsel for the appellant, and also the counsel for the respondent. The points that arise for my consideration are: 1. Whether the prosecution proves that the appellant had demanded a sum of Rs. 2,000/- as bribe for discharging his duties as Chief Supervisor and thereby committed an offence punishable under Section 7 of the Act? 2. Whether the prosecution further proves that the appellant has committed an offence of criminal misconduct by demanding and accepting an amount of Rs. 2,000/-? 3. Whether the appellant has made out any grounds to warrant interference in the judgment and order of the Trial Court? 7. Learned counsel for the appellant would contend that prior to the alleged demand, the relation with the complainant P.W. 3 and the appellant were strained and that there was serious animosity amongst them and, therefore, the interested version of P.W. 3 cannot be accepted. He would further contend that the prosecution has failed to prove the demand of illegal gratification, motive for the demand, the venue, date and time of payment and regarding the payment of the bribe amount from P.W. 3 and acceptance of the same by the appellant. Per contra, the learned counsel for the respondent has supported the judgment and order passed by the Trial Court. 8. Per contra, the learned counsel for the respondent has supported the judgment and order passed by the Trial Court. 8. Learned counsel for the appellant inviting the attention of this Court to the evidence of P.W. 3 states that as the complainant had not supplied materials according to the specification, he had written, letter dated 29-4-2000 to HAL authorities informing them that the appellant was causing harassment to him. Even as could be seen from the evidence of P.W. 5, it is his contention that there is reference of P.W. 3 quarreling with the appellant and also threatened to report against the accused to the vigilance at the end of his contract period and in these circumstances, on the basis of the evidence of P.Ws. 3 and 5, he submits that P.W. 3 nurtured animosity against the appellant and made his effort to falsely implicate him on the charge of acceptance of bribe. 9. Now, so for as the evidence of P.W. 5 is concerned, he is an official of HAL Bangalore and he was working as a Senior Supervisor in the Maintenance Department of HAL under the accused at the relevant period. The witness was treated hostile by the prosecution and it is in the cross-examination that this witness states about, the quarrel and animosity amongst the complainant and the appellant. The letters which have been produced both under Ex. P6 and the D series reveal that the sanitary materials which were being supplied by the complainant P.W. 3 were sometimes not according to the specification. In such circumstances, the materials which were not according to the specifications were returned and the amount in respect of these materials was deducted. But this fact though having been proved is not of much relevance, as such problems were occurring on each of the occasions whenever the sanitary materials were being supplied by the complainant to the HAL authorities. On each of the occasions, the materials which were without any ISI mark or according to the specifications were being returned and the amount was being deducted and in the circumstances, I do not think that this could have been a ground for any animosity between the complainant and the appellant. Furthermore, as could be seen from the evidence of P.W. 3 the initial contract for supply of sanitary materials was for a period of one year. Furthermore, as could be seen from the evidence of P.W. 3 the initial contract for supply of sanitary materials was for a period of one year. If really, the HAL authorities were unhappy about the quality of the materials supplied by P.W. 3, they could have terminated the contract. But the material placed on record would reveal that after the expiry of the contract period of one year, it was extended for a further period of three months. If really the materials supplied were not of good quality, there was every authority for the HAL authorities to rescind the contract, but it was not done so. Furthermore, it is in the evidence of P.W. 3 and other witnesses that the materials which were not according to the specifications were often returned and the amount was deducted. So it was a casual problem between the complainant find the HAL authorities and in such circumstances, it cannot be said that there was animosity between the complainant and the HAL authorities. Furthermore, the appellant was working as a Chief Supervisor who was to receive the sanitary materials supplied and apart from him, there were other superior officials who were working in HAL and in such circumstances, there was no necessity to have animosity only against the appellant accused as the return of the articles were after a thorough check by the HAL authorities. 10. It is in the evidence of P.W. 3 that the accused was demanding an amount as bribe and he had no willingness to pay the same and in such circumstances, any person in the place of the complainant would have a bad feeling of the person who is demanding the bribe. This sort of circumstances itself is not sufficient to hold that there is enemity between P.W. 3 and the appellant. Whenever any official demands any money for doing an official favour, the person paying will not be happy to pay the same as it is illegal demand and though the relations are strained for non payment of the bribe amount this relationship cannot be equated with a serious animosity between the complainant and the appellant. 11. Whenever any official demands any money for doing an official favour, the person paying will not be happy to pay the same as it is illegal demand and though the relations are strained for non payment of the bribe amount this relationship cannot be equated with a serious animosity between the complainant and the appellant. 11. The learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in 2007 AIR SCW 5824 (Ganapathi Sanya Naik vs. State of Karnataka and the perusal of the facts reveal that the accused was acquitted by the Trial Court and in an appeal taking some circumstances, the Apex Court held that serious animosity towards the accused has been proved and in such circumstances, it did not interfere with the order of acquittal on the principle that even. If a second view is possible, the one accepted by the Trial Court cannot be disturbed. So, in case, if a person is demanding some money illegally, a person who pays the money will not have a good impression about the person demanding and in case, if he lodges a complaint with regard to the demand of unlawful remuneration, this itself in my opinion is not sufficient to hold that there is serious animosity 12. So far as the evidence of P.W. 5 is concerned, he is a person interested in the appellant, as he was a sub-ordinate official to the appellant at the relevant time and though he states in his evidence that the appellant was harassing the complainant, the nature of harassment and the particulars have not been spoken to by P.W. 5. In the circumstances, I am of the opinion that the evidence of P.W. 5 cannot be accepted as sufficient to develop enemity between P.W. 3 and the appellant. 13. So far as the demand of illegal gratification of Rs. 2,000/- is concerned, apart from the evidence of P.W. 3 the complainant. P.W. 1 the shadow witness has also stated about the demand made by the accused. After the entrustment mahazar, the tainted 20 notes of Rs, 100 denomination were kept in the pocket of P.W. 3 and he accompanied by P.W. 1 was sent to the chambers of the accused. P.W. 1 the shadow witness has also stated about the demand made by the accused. After the entrustment mahazar, the tainted 20 notes of Rs, 100 denomination were kept in the pocket of P.W. 3 and he accompanied by P.W. 1 was sent to the chambers of the accused. P.W. 3 introduced P.W. 1 as a contractor and they sat on the chairs in front of the accused and thereafter, P.W. 3 asked about the signature on the delivery challans, but the accused was hesitant to speak to P.W. 3 and, therefore, got up and went outside the chamber. In this context. P.W. 3 felt that the accused has entertained a suspicion as P.W. 1 was present with him and, therefore, told P.W. 1 not to stand at the corridor in front of the door. Thereafter, P.W. 5 came inside, he spoke with P.W. 3 for sometime and returned then the accused came and sat on his chair. P.W. 3 again asked about the signature on the delivery challan and at that time, the accused said to have demanded an amount and asked him to give the same. P.W. 3 took out the tainted amount of Rs. 2,000 and gave it to the accused who received the said notes by his right hand and when P.W. 3 requested him to count, the notes, the accused replied. “It is alright” and kept it in the camlin pencil box. Even before entering into the chamber of the accused, the investigating officer had given the mini tape-recorder and the recording was made on entering into the chamber of the accused and whatever conversation that took place between P.W. 3 and the accused has also been recorded. A typed copy of the recorded matter has also been produced that reveals that the accused had demanded an amount of Rs. 2,000/- wherein he stated (vernacular matter not given) (Give that one). Furthermore, P.W. 1 who was standing in the corridor of the chamber was very much nearer to P.W. 3 and the accused and he states in his evidence that he overheard the conversation and also the demand of the money by the accused, Though he was not actually present alongwith P.W. 3 it is only because that the accused entertained suspicion he was sent out and was standing at the corridor of the chamber from where he was able to see the accused. So when P.W. 1 states about the conversation and demand made by the accused and as he was near the door, it is quite natural that he could have heard the conversation that took place between P.W. 3 and the accused. So, therefore, though P.W. 1 was not a witness regarding the payment of the amount made by P.W. 3 to the accused, certainly he is a witness with regard to the conversation between P.W. 3 and the accused. So this much of corroboration to the evidence of P.W. 3 who has no animus with the accused is sufficient and apart from this, the conversation was recorded in a tape-recorder and the matter which was typed from the tape-recorder has also been produced and that fact also supports the case of the prosecution. 14. After the acceptance of the tainted money by the accused, he kept it in the Camlin box by his right hand and even the trap mahazar reveals that the amount was taken out; from the Camlin pencil box which was in the right side drawer of the table and after making the payment, P.W. 3 went outside and gave a signal as instructed. The CBI Police and other independent witnesses entered into the chamber of the accused and the trap procedure was adopted. The right hand wash of the accused was taken. It converted to pink colour. Though it is stated that the left hand wash was also taken, the trap mahazar reveals that the right hand wash alone converted into pink colour and these circumstances, corroborate the version of P.W. 3 wherein he states in his evidence that the accused took the amount by his right hand and even without counting the amount kept the same in the Camlin pencil box. So the conversion of Sodium Carbonate liquid to pink colour supports the version of the prosecution with regard to the acceptance of the bribe amount by the accused. 15. The learned counsel for the appellant has relied upon the decision of the Apex Court reported in AIR 1987 SC 2402 [G.V. Nanjunaiah vs. State (Delhi Administration)] and the facts disclose that an Engineer had accepted the bribe amount from a contractor working under him and the evidence of the contractor was not found trust worthy. 15. The learned counsel for the appellant has relied upon the decision of the Apex Court reported in AIR 1987 SC 2402 [G.V. Nanjunaiah vs. State (Delhi Administration)] and the facts disclose that an Engineer had accepted the bribe amount from a contractor working under him and the evidence of the contractor was not found trust worthy. The perusal of the facts reveal some unusual circumstances, unusual conduct of the complainant in the said case and also the shadow witness and it is in these circumstances that the Apex Court held that the acceptance of the bribe is not proved. But as could be seen from the material placed on record, there is the evidence of P.W. 3, furthermore, the conversion was recorded in the mini Tape recorder and P.W. 1 also over heard the demand made by the accused and in addition, the trap mahazar reveals that the right hand wash converted to pink colour. So if these facts are taken together for consideration, the defense of the accused that when he had gone outside the amount was kept by the complainant in the camlin pencil box cannot he accepted for the reason that if the said amount was kept by the complainant, then the right hand wash of the accused could not have turned to pink colour. So this version strengthens the version about acceptance of the amount by the accused. 16. Furthermore, the learned counsel also relied upon the decision of the Apex Court reported in (2010) 2 SCC (Crl.) 385 (State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede) wherein the Apex Court has held that the demand of illegal gratification is a sine qua non for the constitution of the offence under the provisions of the Act. The facts reveal that the raids were not successful, the panch witness was dead, no other independent witnesses were available to prove the demand, other panch was declared hostile. It is in these circumstances that the Apex Court held that there was no demand. P.W. 1. in his evidence has stated the demand made by the accused on 1.6.2000 and it is thereafter that he went to the CBI Police to submit his complaint with regard to the demand made and thereafter, it is only on the request of the accused that he paid the amount of Rs. 2,000/-. P.W. 1. in his evidence has stated the demand made by the accused on 1.6.2000 and it is thereafter that he went to the CBI Police to submit his complaint with regard to the demand made and thereafter, it is only on the request of the accused that he paid the amount of Rs. 2,000/-. So these circumstances and the evidence of the witnesses corroborate the version of the complainant with regard to the demand and, therefore, I am of the opinion that the decision relied upon by the learned counsel do not apply to the facts on hand. 17. Now, so far as the motive is concerned, it is relevant to note that though in the evidence, it is admitted that the signature of the accused on the delivery challan was not necessary for making the payment of the prices of sanitary materials, the evidence reveals that it was a procedure to submit a request for payment alongwith the signed delivery challans and as could be seen from the clause (d) of Section 7 of the Act it reads: “(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.” (Emphasis supplied) 18. So the perusal of the provisions reveals that in case if any amount is accepted as gratification, for doing what he does not intend or is not in a position to do or has not done also comes within the expression of motive or reward for doing an official favour. Though the learned counsel has relied upon the decision of the Apex Court reported in AIR 1954 SC 387 (Madan Mohan Singh vs. State of Uttar Pradesh) the Apex Court held that it is necessary for the Courts to consider as to for what motive or reward for what act, the bribe was paid. So whether the signature of the accused was necessary on the delivery challan or not the fact that the accused received the money for signing the said document with the purpose to get the release of the price of the sanitary materials, the acceptance of the amount falls within the purview of clause (d) referred to supra. So whether the signature of the accused was necessary on the delivery challan or not the fact that the accused received the money for signing the said document with the purpose to get the release of the price of the sanitary materials, the acceptance of the amount falls within the purview of clause (d) referred to supra. In these circumstances, I am of the opinion that there is a motive for the payment of the bribe amount to the accused. 19. So far as the trap is concerned, though the complainant and other police officials did not ascertain the presence of the accused at the time when they left the CBI Office, I do not think that it is that much necessary to ascertain as the possibility of an official being present is presumed for as a person will be absent only in exceptional circumstances. Even before they left the CBI office, an effort was made to ascertain the presence of the accused in the office. It failed only because there was no response to the call made and in such circumstances, if the venue, date and time was not predetermined is not a ground to reject the version of the prosecution as a whole. 20. There is some discrepancy so far as the tainted notes of Rs. 2,000/-. In the disciplinary enquiry against the accused, the evidence of P.W. 3 was recorded, therein, he stated that the amount of Rs. 2,000/- was supplied by the CBI and in the evidence before the Court P.W. 3 stated that the 20 notes of Rs. 100/- denomination were given by him through the CBI officials and that after treating the said notes with phenolphthalein powder, the notes were kept in the pocket of P.W. 3. There cannot be any case without discrepancies and even by oversight some discrepancies may occur. When the complainant P.W. 3, the independent witnesses including the CBI officials state before the Court that the amount was paid by the complainant at the time of the entrustment mahazar, is consistent as regards the payment of the money by the complainant. So a stray admission, in the disciplinary enquiry against the accused is not sufficient to dislodge the substratum of the prosecution. There is consistent evidence of P.W. 3, corroborated by the evidence of P.Ws. So a stray admission, in the disciplinary enquiry against the accused is not sufficient to dislodge the substratum of the prosecution. There is consistent evidence of P.W. 3, corroborated by the evidence of P.Ws. 1 and 4 and furthermore, the conversation was recorded in a tape-recorder and this abundant material placed on record supports the version of the prosecution and the complainant’s evidence stands corroborated in material particulars. In the circumstances, the decision reported in AIR 1979 SC 1191 , (Pannalal Damodar Rathi vs. State of Maharashtra) cannot be made applicable as the marked notes were not recovered from the appeal in the said case. So also, he relied upon an unreported judgment in Crl. A. No. 634/2001 and Crl. A. No. 1047/2001 dated 11th July 2006 and 1st July 2006 wherein this Court considering the fact that the complainant alone supported the version of the prosecution held that the corroboration is necessary and as could be seen from the facts on hand, the evidence of P.W. 3 is consistent, cogent and the same is supported by P.W. 1, but who heard the conversation and the amount was recovered at the instance of the accused and further, that the right hand wash of the accused converted to pink colour. 21. To further strengthen the version of the prosecution, it is necessary to refer to the evidence of P.W. 5 Venkoba Rao, who was then working as Senior Supervisor in Maintenance Department (Plant Engineering Department) and he states in his evidence that on 1-6-2000 the complainant had requested him to get the delivery challans Ex. P2 signed and when he approached the accused for the purpose of his signature, the accused refused to sign stating that he would sign it later. So this version of P.W. 5 who is the official of the office of the accused, is independent and has to be accepted as trust worthy. So. once the delivery challan was not signed on 1.8.2000, it is to be inferred that the signature on the said challan at Ex. P2 was on some other date other than 1.6.2000. So, the mere signature by the accused mentioning the date as 1.6.2000, though it was signed on 10.8.2000 has no relevance. So the unsigned delivery challan Ex. So. once the delivery challan was not signed on 1.8.2000, it is to be inferred that the signature on the said challan at Ex. P2 was on some other date other than 1.6.2000. So, the mere signature by the accused mentioning the date as 1.6.2000, though it was signed on 10.8.2000 has no relevance. So the unsigned delivery challan Ex. P2 was produced by the complainant before the CBI Police and at the time when the tainted notes were put in the pocket of the complainant, the said delivery challans were also given for signature and on 10.6.2000, when the trap was laid, the accused signed the said delivery challan Ex. P2 by putting the date as 10.6.2000 and this version of the prosecution is supported by the evidence of P.W. 5. 22. Furthermore, he states that he came to the cabin of the accused and at that time, the accused was not in the cabin and he spoke to P.W. 3 who was sitting with his friend P.W. 1. So during the period of the absence of the accused in the chamber, P.W. 5 was there with P.Ws. 3 and 1 and there was no occasion for P.W. 3 to place the notes in the camlin pencil box. So in these circumstances, if the material placed on record is perused, there is clinching material to prove that the accused received the bribe amount for doing some official favour. Therefore, the defense of the accused that the tainted notes MO, 10 were left on the table drawer cannot be accepted solely for the reason that his right hand wash converted the Sodium Carbonate to pink colour which gives an indication that the accused received the tainted amount in his hand and then kept it in the drawer of the right side of the table by his right hand. So, the re-appreciation of the material placed on record leads to an irresistible conclusion that the appellant received the bribe amount of Rs. 2,000/- and thereby having committed the offence punishable under Section 7 and 13(1)(d) read with 13(2) of the Act. The Trial Court has taken into consideration all these materials and has come to a right conclusion. The appellant has not made out any such grounds to warrant interference. 2,000/- and thereby having committed the offence punishable under Section 7 and 13(1)(d) read with 13(2) of the Act. The Trial Court has taken into consideration all these materials and has come to a right conclusion. The appellant has not made out any such grounds to warrant interference. In that view of the matter, 1 answer the points I and 2 in affirmative and point No. 3 in negative and proceed to pass the following: ORDER The appeal is dismissed. The conviction and the sentence ordered by the Trial Court for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C. Act is confirmed. The Trial Court is directed to secure the presence of the accused to undergo the sentence.