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2012 DIGILAW 84 (KAR)

R. Malini v. State of Karnataka

2012-01-30

V.JAGANNATHAN

body2012
Judgment : V. JAGANNATHAN, J. 1. Those two criminal appeals arise out of one and the same judgment of the Court below. A-1 and A-2 were the accused who have preferred these appeals and they were convicted by the trial Court in respect of the offences punishable under Sections 7 and 13(i)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 2. The prosecution case in short is that, the accused viz., Malini, was working as a Second Division Assistant in Taluk Office, Mysore, and A-1 Chikkarangaiah was working as Gram Sahayak in the same office and they were approached by the complainant Sabeeha Begum who was in need of minority community certificate. As she had made the application for issue of the said certificate to the Tahsildar, she approached the accused and as per the complaint, A-1 Chikkarangaiah is said to have demanded `200/-from the complainant for issuance of the minority certificate. As A-1 asked the complainant to bring the amount on 17.2.97, the complainant unwilling to pay the bribe amount of `200/- to A-1, went and lodged her complaint with the Lokayukta police on the same day. As the case was registered on the basis of the complainant Ex.P1 and after conducting the entrustment mahazar as per Ex.P3, the complainant along with the shadow witness Sumangala Bai (PW-5) went to the office of the accused at about 2.20 p.m. It is the prosecution case that the trap was successful inasmuch as A-1 accepted the bribe amount of `200/- on the direction of A-2. After the test conducted proved to be positive insofar as A-1 is concerned, after obtaining the sanction order Ex.P12, the charge sheet was submitted. 3. The accused denied the prosecution case and therefore several witnesses were examined on behalf of the prosecution apart from marking 21 documents and 8 M.Os. The accused statement was recorded and no witness was examined in defence of the accused. 4. Learned trial Judge after evidence appreciation, took the view that the evidence of PW-1 the complainant is corroborated by the shadow witness PW-5 and as A-1 and A-2 with the common intention had demanded and accepted the bribe amount of `200/-, the trial Court therefore convicted both the accused with the aid of Section 34 of IPC. Both the accused were sentenced to pay `5,000/-fine apart from undergoing six months RI. Both the accused were sentenced to pay `5,000/-fine apart from undergoing six months RI. for the offence punishable under Section 7 of the Prevention of Corruption Act. In respect of conviction u/s 13(1)(d) r/w 13(2) of the said Act, both the accused were sentenced to one year R.I. and pay `5,000/-fine. Default sentences were also awarded. 5. Challenging the conviction and sentence, the accused have approached this Court and Crl.A.No.366/07 is by A-2 and the other appeal Crl.A.No.366/07 (sic 327 of 2007) is by A-1. 6. I have heard the learned Counsel Sri C.G. Sundar for the appellant i.e. A-2 and his argument is adopted by the learned Counsel for A-1. I have also heard the learned Counsel for the Lokayukta Sri S.G. Rajendra Reddy and perused the records of this case. 7. Submission of the learned Counsel for the appellant A-2 is that, a careful reading of the evidence on record would go to show that there is no corroboration between PW-1 and PW-5. In this connection, it is submitted that the evidence of PW-5 completely rules out the evidence of PW-1 with regard to the complainant and the shadow witness going inside the office of the accused for enquiry and handing over the bribe amount. Secondly, it is argued that, neither A-1 nor A-2 made any demand, but on the other hand, the complainant herself volunteered to give the amount to A-1 who refused it and then she approached A-2. A-2 also refused to accept the bribe amount and then again the complainant approached A-1 and gave the amount to A-1 who took it and kept it in his pocket. 8. This therefore goes to show that there was no demand made by the accused at all. Secondly, it is pointed out from the evidence of the investigating officer that the certificate of the complainant was kept ready as far back as on 9.1.97 itself, but the complainant kept quiet and approached the Lokayukta office only on 17.2.97 with her complaint. Therefore, when the certificate was kept ready much before lodging of the complaint, the question of accused demanding bribe amount for doing any work does not arise as no work was pending at the time of loading of the complaint. Therefore, when the certificate was kept ready much before lodging of the complaint, the question of accused demanding bribe amount for doing any work does not arise as no work was pending at the time of loading of the complaint. Since A-2 neither accepted the bribe amount nor is there any evidence to show that money was given to her, but on the other hand, the prosecution witnesses stating that A-2 had refused to accept the bribe amount, the trial Court could not have convicted A-2. For the very same reasons, A-1 also could not have been convicted because there was no demand made by A-1. 9. Theaforesaid contentions are sought to be supported by the learned Counsel by relying on the decisions reported in 2005 AIR SCW 6275, 2010 AIAR (Criminal) 495, 2000 (7) kar.L.J. 114. I (2001) CCR 343 (SC), (2006) 1 SCC (Crl) 401. On the strength of the law laid down in the aforesaid cases, learned Counsel for the appellant therefore sought for appeal being allowed by setting aside the judgment of conviction and sentence passed by the trial Court. Same arguments were also adopted by the learned Counsel for A-1. 10. On the other hand, learned Counsel Sri. Rajendra Reddy for the Lokayukta referred to the evidence of PW-1 the complainant and PW-5 the shadow witness to point out that both witnesses have deposed in similar fashion with regard to the accused demanding and accepting he bribe amount and as such, no infirmity can be found in their evidence. The trial Court rightly accepted the evidence of PWs1 and 5 and the view taken by the Court below is also in accordance with the evidence placed by the prosecution. In this connection, learned Counsel for the Lokayukta took me through the evidence of PW-1 and also PW-5 and sought for confirmation of the judgment of the Court below. 11. Having thus heard both sides, whether the findings recorded by the Court below can be sustained in law in the face of the evidence on record. 12. Interference by the appellate Court generally is not called for unless it is shown that the findings recorded by the Court below are perverse in nature. It is in this backdrop, the evidence has to be looked into. 13. 12. Interference by the appellate Court generally is not called for unless it is shown that the findings recorded by the Court below are perverse in nature. It is in this backdrop, the evidence has to be looked into. 13. The specific case of the prosecution as per the complaint Ex.P1 is that, it was A-1 Chikkarangaiah who had demanded `200/-in order to issue the minority certificate to the complainant. There is no whisper in the complaint against A-2 demanding any amount much less `200/-. PW-1 is the complainant and as per her evidence, she along with the shadow witness went to the office of the accused and they saw A-1 in the counter and behind A-1, A-2 was also sitting. From outside the counter PW-1 told A-1 that she has brought the amount and that A-2 questioned from inside as to whether the endorsement has been brought and then A-1 replied that the endorsement has been brought. It is then deposed by PW-1 that, A-2 asked her to come inside and she along with PW-5 went inside the office and then again the complainant tried to hand over the amount to A-1 and A-1 told the complainant that the work is being done by A-2 Malini and therefore to give the amount to A-2. Again the complainant approached A-2 and after questioning the complainant as to the amount being brought and complainant having replied that she has brought `200/-, A2 told the complainant to give the amount to A-1 and again the complainant approached A-1. Once again A-1 directed the complainant to go to A-2 and finally when the complainant removed the amount from the pocket and was about to give it to A-2, A-2 refused to take the amount and directed to other accused A-1 to take the amount and in the evening the matter could be resolved. Finally the complainant approached A-1 to give the amount and A-1 took the amount and kept it in his right hand. 14. This evidence of PW-1 will have to be examined in the light of the evidence of the shadow witness PW-5. Finally the complainant approached A-1 to give the amount and A-1 took the amount and kept it in his right hand. 14. This evidence of PW-1 will have to be examined in the light of the evidence of the shadow witness PW-5. According to PW-5, she along with the complainant went to the office of the accused on 17.2.97 at 2.20 p.m. and when the complainant tried to hand over the amount to A-1, she was told that the work is being done by A-2 and the amount be given to A-2. A-2 then said that she has done the work and then told A-1 to take the amount. A-1 again told that the work is being done by A2 and when the complainant tried to give the amount to A-2, A-2 refused to receive the amount and A-2 told A-1 to take the amount and accordingly A-1 received the amount from PW-1 and kept it in his right hand. 15. Further, in the course of his cross-examination PW-5 has deposed to the effect that, as they enter the hall, they come in contact with the counter first and all the applications were sought to be given in the counter itself and any information required also had to be obtained in the counter itself and the question of entering the office does not arise. She further deposed that, PW-1 was with her and both of them were in the counter and they did not go inside to meet the Superintendent, but from the counter itself they met the officials. She has also deposed to the effect that, she and PW-1 were in the counter for two minutes and they could not see the person sitting inside the counter. It is also her evidence that, PW-1 enquired with the person who was inside the counter as to what had happened to her application and she was told that the application had gone to the case worker. 16. Thus, from the evidence of PW-5, it is gathered that she and PW-1 did not go inside the office, but did all their talks from the counter itself. 16. Thus, from the evidence of PW-5, it is gathered that she and PW-1 did not go inside the office, but did all their talks from the counter itself. If that is the evidence of PW-5, the evidence of PW-1 that she and PW-5 went inside the office and talked to the accused, cannot be believed and thus there is no corroboration between the two witnesses in regard to the very material aspect of the case viz., from which place they tried to approached the accused. Therefore, this is a serious infirmity in the prosecution case which has been totally overlooked by the trial Court. 17. The next aspect is that, PW-5 has deposed in her evidence that, A-2 did not accept the bribe amount. Even PW-1 also says that A-2 did not accept the bribe amount. Thus, the question of A-2 being convicted does not arise. Neither is there any evidence to show that she demanded any amount from the complainant nor any evidence relating to receipt of amount by A-2. Even the complaint allegations are mainly against A-1. 18. As far as A-1 is concerned, the, evidence of PWs 1 and 5 carefully looked into reveals that A-1 was approached by the complainant with the money and the complainant deposes in her evidence that A-1 did not demand any amount from the complainant. On the other hand, the witnesses evidence reveals that A-1 never accepted the bribe amount and directed the claimant to give it to A2. It is only at the instance of A-2, finally the amount was given by the complainant to A-1. Therefore, mere possession of the amount by the accused cannot be taken as receipt of the amount by the, accused after demand being made by him as the evidence of demand is totally lacking. The argument that A-1 never demanded any bribe amount also appears to carry sufficient force behind it. 19. As far as the work is concerned, it has come in the evidence of the investigating officer himself that the work was ready as far back on 9.1.97 itself. The argument that A-1 never demanded any bribe amount also appears to carry sufficient force behind it. 19. As far as the work is concerned, it has come in the evidence of the investigating officer himself that the work was ready as far back on 9.1.97 itself. If the certificate was kept ready on 9.1.97, question of the complainant approaching the accused long after that on 17.2.97 and offering the bribe amount to complete the work does not arise and as no work was pending with the accused as on 17.2.97, likelihood of the accused demanding the bribe amount after the completion of the work also becomes doubtful. 20. The Apex Court in the case of State Vs. K. Narasimhachary, 2005 AIR SCW 6275 has held that, where the certificate was already forwarded and signed by the final authority even before the alleged demand of bribe, the aforesaid circumstances would create suspicion about the demand of bribe. Similarly in the case of State of Police Inspector Vs. H. Manjunatha (2000 (7) Kar. L.J. 114), the learned Single Judge of this Court has taken the view that, it is not the passing of the money alone that establishes a corruption charge because the gravamen of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount. 21. In another case of the Apex Court reported in 1 (2001) CCR 343 (SC), it has been held by three Judges Bench of the Apex Court that the Court cannot convict the accused only on probability or suspicion however strong it may be and the case of the prosecution will have to be proved beyond all reasonable doubt. 22. Finally in the case of T. Subramanian Vs. State of Tamil Nadu, ((2006) 1 SCC (Cri) 401) it has been held by the Apex Court that, mere acceptance of `200/- by the appellant will not be sufficient to fasten the guilt under Section 5(i)(a) or Section 5(1)(d) of the Prevention of Corruption Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. 23. The aforesaid decisions applies to the case on hand because demand of the bribe amount by A1 is not established. A-2 did not accept the bribe amount is also established from the evidence of the prosecution witnesses PWs 1 and 5. 23. The aforesaid decisions applies to the case on hand because demand of the bribe amount by A1 is not established. A-2 did not accept the bribe amount is also established from the evidence of the prosecution witnesses PWs 1 and 5. There is no allegation in the complaint that A-2 had demanded `200/- as the bribe amount. Even if the amount was ultimately paid by PW1 to A-1, that will not make it a case of A-1 demanding the amount of bribe and then receiving it. PW-1’s evidence that she went inside the office and talked to the accused is not corroborated by PW-5 as according to PW-5, going inside the office does not arise and all the talks were held from the counter itself. Finally, the certificate in question was ready on 9.1.97 itself and therefore the question of the accused demanding and accepting the bribe amount on 17.2.97, does not arise. 24. Though learned Counsel for the appellant i.e. A-2 also pointed out that the sanction order is also invalid because sanction order speaks about A-1 and A-2 accepting the bribe amount, whereas as per the complaint, it is A-1 who had demanded the bribe amount and no allegation was made on the part of the sanctioning authority particularly in respect of A-2 and great prejudice has been caused to A-2 and for that reason, the sanction order also will have to be held to be invalid. Though aforesaid contention is put forward, since after analyzing the evidence on record, this Court has now come to the conclusion that the evidence is not strong enough to hold that A-1 and A-2 had demanded the bribe amount, pursuant thereto A-1 had accepted the bribe amount, the conviction of the appellants therefore will have to be set aside only on the aforesaid reasons and hence it is not necessary to touch upon the argument addressed concerning the validity of the sanction order. 25. In the result, the findings recorded by the Court below cannot be termed as consistent with the evidence on record. 25. In the result, the findings recorded by the Court below cannot be termed as consistent with the evidence on record. But on the other hand, the conclusion reached is not based on proper evidence appreciation and the finding recorded being perverse in nature as no offence u/s 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 has been established by the prosecution beyond all reasonable doubt, this is a case where the trial Court ought to have acquitted A-2 and given the benefit of doubt to A-1 instead of convicting both the accused. In the result, the appeals are allowed and the conviction of the appellants by the Court below stand set aside and the appellants are acquitted of the offence with which they stood charged. Their bail bonds shall stand cancelled.