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Karnataka High Court · body

2012 DIGILAW 865 (KAR)

Prakash Kapte v. State of Karnataka

2012-10-04

A.N.VENUGOPALA GOWDA

body2012
JUDGMENT A.N. Venugopala Gowda , J.—The appellant, at the relevant point of time was working as Assistant Professor, Radiotherapy Department, Victoria Hospital, Bangalore. He was put on trial for commission of the offences punishable under Ss. 7 and 13(1)(d) r/w S. 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). The Special Judge, Bangalore Urban District, Bangalore City by Judgment and Order dated 28.4.2008, passed in Special C.C. No. 38/2006 held him guilty of the said offences and sentenced him to undergo simple imprisonment for a period of one year and pay fine of Rs. 1,000/-, in default, to further undergo simple imprisonment for a period of one month for the offence under Section 7 of the Act. The appellant was further sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment for a further period of one month for the offences under Section 13(1)(d) r/w S. 13(2) of the Act. Both the substantive sentences were directed to run concurrently. This Appeal has been preferred by the accused assailing the said Judgment of conviction and Order of sentence. Material facts and circumstances giving rise to this appeal with reference to the rank of the parties in the Trial Court are: a) Thimmarayappa/PW-1, filed a complaint on 14.11.2000 before the Lok Ayuktha Police stating that his father Ramanna is under treatment from 6.11.2000 in the Cancer Ward of Victoria Hospital, Bangalore, wherein, Dr. Prakash Kapate is the Head and that his father was not given treatment for the first two days and that Dr. Prakash Kapate demanded to pay Rs. 2,000/- and that upon bargaining, was reduced to Rs. 1,000/- and for not paying the demanded amount, that on 13.11.2000, Dr. Prakash Kapate became angry. According to PW-1, he requested Dr. Prakash Kapate on 13.11.2000 to give good treatment to his father and told that he would go to the village and arrange Rs. 1,000/- and give to him on the next day morning. The complainant was not willing to pay the bribe amount and he met PW-9, an official of Karnataka Lok Ayuktha Police and gave a written complaint (Ex. P1). b) In view of the said complaint, a trap was arranged and as per plan, PW-1 met Dr. Prakash Kapate in his chamber and had conversation with him. The complainant was not willing to pay the bribe amount and he met PW-9, an official of Karnataka Lok Ayuktha Police and gave a written complaint (Ex. P1). b) In view of the said complaint, a trap was arranged and as per plan, PW-1 met Dr. Prakash Kapate in his chamber and had conversation with him. At that time, shadow-witness, PW-2/M. Krishnachari stood near the door of the chamber of Dr. Prakash Kapate, who asked PW-1, whether he had brought Rs. 1,000/- asked by him and give it early. PW-1 took out the tainted currency notes from his shirt left side pocket and gave to Dr. Prakash Kapate, who received the money in the right hand and kept in his shirt left side pocket and told PW-1 that he will look after his father. Thereupon, PW-1 came out of the chamber of Dr. Prakash Kapate and gave pre-determined signal to the raiding party. Immediately, the raiding party came near PW-1, who took them to the chamber of Dr. Prakash Kapate and showed him as the person who received the bribe money from him. PW-11 apprehended Dr. Prakash Kapate and conducted Sodium Carbonate solution test on the fingers of both the hands and also shirt left side pocket of Dr. Prakash Kapate, which turned pink. The tainted currency notes were recovered. After usual investigation, the investigating agency submitted the charge sheet against the accused for the offences punishable under Ss. 7, 13 (1)(d) r/w 13(2) of the Act. c) In response to the summons the accused appeared and the charge framed, when read over and explained, the accused pleaded not guilty and claimed to be tried. The prosecution, in its attempt to bring home the guilt of the accused, examined PWs-1 to PW-11 and got marked Exs. P1 to P18 and MOs. 1 to 10. d) Out of the witnesses examined by the prosecution, PW-1/Thimmarayappa is the complainant. PW-2/M. Krishnachari is shadow witness. PW-3/Dr. Siddanna. R. Palled, a post graduate student in the Radiotherapy department, was the assistant of the accused in the Cancer Ward. PWs. 4 and 5 were the staff nurses at the relevant point of time in the Cancer Ward of the Hospital. PW-6/Dr. R. Chandrashekar was the head of Department of Radiotherapy, Victoria Hospital. PW-7/L.B. Shivakumar is the Engineer who prepared the sketch Ex. P8-showing the scene of offence. PW-8/S.N. Krishnakumar issued sanction order/Ex. PWs. 4 and 5 were the staff nurses at the relevant point of time in the Cancer Ward of the Hospital. PW-6/Dr. R. Chandrashekar was the head of Department of Radiotherapy, Victoria Hospital. PW-7/L.B. Shivakumar is the Engineer who prepared the sketch Ex. P8-showing the scene of offence. PW-8/S.N. Krishnakumar issued sanction order/Ex. P11 for prosecution of the accused. PW-9/ B.A. Joyappa was the then Deputy Superintendent of Police, City Division, Karnataka Lok Ayuktha, Bangalore, who received complaint/Ex. P1 and gave it to S.R. Vijayakumar, Police Inspector (PW-11). PW-11/ S.R. Vijaya Kumar, registered the case, dispatched FIR to the Court and conducted the pre-trap exercise and laid the trap, apprehended the accused after he had accepted the bribe. PW-10/Malekoppa Subba Rao, Police Inspector, City Division, Lok Ayuktha, filed the charge sheet. e) Ex. P1 is the complaint. Ex. P2 is the pre-trap/entrustment mahazar. Ex. P3 is the trap mahazar. Ex. P4 is the case sheet of patient Ramanna at Victoria Hospital. Ex. P5 is the written explanation of the accused, given at the time of the trap proceedings, wherein he has stated that he never demanded money from either the patient or the attender Mr. Thimmarayappa. Ex. P6 is imprint seal. Ex. P7 is Xerox copy of Attendance Register extract. Ex. P8 is the spot sketch. Ex. P9 is notes sheet. Ex. P10 is Sanction Order. Ex. P11 is the corrigendum. Ex. P14 is the FIR. Exs. P15 and P16 are the requisitions. Ex. P17 is C.E. Report and Ex. P18 is Service particulars of the accused. f) The Trial Court on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so, it considered the defence version and the same being not probable rejected the defence. The accused was convicted and sentenced, as above. 2. Sri S.G. Bhagavan, learned advocate, contended that, to hold the appellant guilty in respect of the charged offences, the prosecution has to prove the demand of bribe amount beyond all reasonable doubts and that mere recovery of tainted money or mere acceptance thereof is not enough. He submitted that, PW-1 has voluntarily thrust the money into the shirt pocket of the appellant, for which satisfactory explanation was furnished as per Ex. He submitted that, PW-1 has voluntarily thrust the money into the shirt pocket of the appellant, for which satisfactory explanation was furnished as per Ex. P5 and apart from that, when examined under Section 313 Cr.P.C., answer was given and was probabalised by deposing as DW-1. He submitted that, PW-2 has not heard the conversation between PW-1 and the accused and has also not witnessed the alleged demand and hence, there is no corroboration to the version of PW 1. By relying upon the decision in the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, AIR 2009 SC 2022 , learned counsel contended that the prosecution case is false and not established beyond reasonable doubts and hence, the Judgment of conviction and the Order of sentence passed by the Trial Court being illegal, interference is warranted. 3. Smt. T.M. Gayathri, learned advocate, on the other hand, contended that there is abundant credible evidence on record in proof of the demand and acceptance of bribe amount by the accused. She submitted that the evidence of PW-1 and 2 is credible and that the trap laid by PW-11 is successful and the investigation conducted in the matter is flawless. She submitted that, PW-2, independent witness, has corroborated the version of PW-1 and that bribe money was recovered from the accused and there is no reason to disbelieve the testimony of PWs. 1 and 2. She submitted that the presumption under Section 20 of the Act has not been rebutted by the accused. She submitted that the prosecution has proved its case beyond all reasonable doubts and hence, the appeal being devoid of merit may be dismissed. 4. Perused the record. In view of the rival contentions, the point for consideration is: Whether the Judgment of conviction and the order of sentence passed by the Trial Court, impugned herein, is perverse and illegal? 5. From the evidence of PW-1/complainant and PW-2, the shadow witness, it is evident that PW-1 entered the chamber of the accused. From the evidence of PW-1, it is clear that the accused demanded the money, whereupon, the complainant delivered the tainted currency notes and the accused kept them in his shirt left side pocket. 5. From the evidence of PW-1/complainant and PW-2, the shadow witness, it is evident that PW-1 entered the chamber of the accused. From the evidence of PW-1, it is clear that the accused demanded the money, whereupon, the complainant delivered the tainted currency notes and the accused kept them in his shirt left side pocket. After giving the pre-determined signal by PW-1, PW-11, Police Inspector came to the chamber of the accused and sodium carbonate solution test was conducted on the right hand fingers and the left hand fingers of the accused and also on his shirt left side pocket and the solution turned pink. The tainted money was recovered from the accused, who offered the explanation/Ex. P5. 6. PW-11 has said that, after he received the complaint/Ex. P1 against the accused of demanding bribe from, the complainant, he secured PW-2 and CW-3, government officials, to act as panch witnesses in the trap proceedings. He conducted the pre-trap proceedings on 14.11.2000, in the presence of PW-1, PW-2 and CW-3. He has further said that, he laid the trap on the same day and recovered the tainted currency notes from the left side shirt pocket of the accused. He has deposed regarding the investigation conducted by him. 7. PW-2, M. Krishnachari, who acted as a shadow witness has spoken about the entire trap proceedings and also about Ex. P2 and Ex. P3 and has corroborated the version of PW 1. Nothing material has been elicited during cross examination to doubt the testimony. The presence of PW-2 at the spot has not been disputed. His evidence is trustworthy and is unimpeachable. The testimony does not suffer from any major contradictions and/or improvements nor noticeable embellishments. There is eye witness account of the trap proceedings. 8. PWs. 1, 2 and 11 have narrated fully how the trap was conducted from the very beginning till the seizure of the tainted currency notes, including the preparation of the sodium carbonate solutions, the tests conducted and the seizure mahazars/Exs. P2 and P3. No discrepancy was pointed out by Sri S.G. Bhagwan in the matter of trap proceedings conducted by PW-11. 9. Evidence of PWs. 6, 3, 4 and 5 would show that Ramanna, father of PW-1 was an inpatient in the Cancer Ward of Victoria Hospital from 6.11.2000 and the patient being under the care of the accused. The case sheet of the Ramanna is Ex. 9. Evidence of PWs. 6, 3, 4 and 5 would show that Ramanna, father of PW-1 was an inpatient in the Cancer Ward of Victoria Hospital from 6.11.2000 and the patient being under the care of the accused. The case sheet of the Ramanna is Ex. P4. 10. The learned trial Judge in his Judgment has noticed in great detail, the oral and documentary evidence brought on record by the prosecution and also the evidence of DW-1/ accused. The accused has been caught red handed with the tainted currency notes being found in the left side of the shirt pocket. The recovery of tainted money (MO-9) has not been disputed. The evidence of PWs. 1 and 2, which has not been shaken in cross-examination, establishes the demand and acceptance of the bribe amount by the accused and also the recovery thereof. Thus, the foundational facts relating to the offences committed by the accused under the provisions of the Act has been brought on record by the prosecution. 11. In the case of C.M. Girish Babu (supra), Apex Court has held as follows: 21. It is well settled that the-presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. (Emphasis supplied by me) 12. In view of the recovery of the tainted currency notes (MO-9) from the accused and the result of the sodium carbonate solution tests (MO-3, MO-5 and MO-6) and the explanation of the accused as per Ex. (Emphasis supplied by me) 12. In view of the recovery of the tainted currency notes (MO-9) from the accused and the result of the sodium carbonate solution tests (MO-3, MO-5 and MO-6) and the explanation of the accused as per Ex. P5 and his answer to question No. 108 under Section 313 Cr.P.C. and also the admission made while deposing as DW-1, that, "at about 1.15 p.m., the complainant Thimmarayappa came to my chamber and he told me that you have looked after my father very well take this money and he thrust some amount in my left side pocket, even though, I refused to accept the money and I removed the said amount from my shirt pocket to return it to the complainant, but by that time, the complainant went out of my chamber, immediately, Lok Ayuktha Police and their staff came to my chamber along with complainant and at that time I kept money on my table", the burden rests on the accused to displace the statutory presumption under Section 20 of the Act, by bringing on record, evidence, either direct or circumstantial, to establish the reasonable probability, that the money was accepted by him other than as motive or as a reward, as referred to in S. 7 of the Act. While deposing as DW-1, accused has admitted that there is no ill will or enmity between him and the complainant/PW-1. Nothing has been brought on record to show that PW-2 or PW-11 had any enmity or score to settle against the accused or that, the accused was falsely implicated in the trap case. The learned trial Judge has made detailed reference to Ex. P5 and the evidence of DW-1, in paras 54, 55, 56 and 58 of the Judgment. In my opinion, the accused, either by direct or circumstantial evidence, has not displaced the statutory presumption. 13. The appellant, at the relevant-point of time, was working as Assistant Professor, Radiotherapy section, Victoria Hospital, Bangalore which a Government owned institution. Indisputedly, he was a public servant. From the evidence led by the prosecution it is evident that the accused has demanded money from the complainant to give treatment to the in-patient Ramanna. The acceptance of the bribe amount is well established by the evidence of PW-2 and Exs. P2, P3, P17, and MOs. 1, 3, 5, 6, 8 and 9. Indisputedly, he was a public servant. From the evidence led by the prosecution it is evident that the accused has demanded money from the complainant to give treatment to the in-patient Ramanna. The acceptance of the bribe amount is well established by the evidence of PW-2 and Exs. P2, P3, P17, and MOs. 1, 3, 5, 6, 8 and 9. The positive sodium carbonate tests, a vis-a-vis the fingers and the left shirt pocket of the accused goes to show that he voluntarily accepted the bribe amount of Rs. 1,000/-. Thus, the prosecution has established the guilt of the accused beyond all reasonable doubts. In view of the evidence on record, which has been correctly appreciated by the learned Trial Judge, the finding of guilt recorded being neither perverse nor illegal, there is no scope to interfere with the impugned Judgment and order, which is well considered, well-supported and well founded. In the result, the appeal being devoid of merit is dismissed. The bail bond and surety bond are cancelled, the appellant is directed to surrender before the Trial Court and serve the sentence.