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2017 DIGILAW 1625 (KAR)

State v. H. S. Santhosh Kumar

2017-12-06

ANAND BYRAREDDY

body2017
JUDGMENT : Anand Byrareddy, J. Heard the Special Public Prosecutor appearing for the appellant and the counsel for the respondents-accused. 2. The State seeks to question the acquittal of the accused in respect of offences punishable under Sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity) and Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). 3. The case of the prosecution was that on 18.9.2001, at about 1.30 p.m., one Lakshmaiah had lodged a complaint with the Lokayukta Police, Madikeri to state that one Bhagvan Das, the proprietor of M/s. Diamond Finance and Investments had filed an application before the Assistant Registrar of Co-operative Societies, Kodagu on 13.8.2001, seeking license to start a finance institution in the name and style of M/s. Diamond Finance and Investments and that he had been authorised by Bhagavan Das to also receive the license from the office after it was granted. Accordingly, on 15.9.2001, the complainant had approached accused No.1, Santhosh Kumar, the Assistant Registrar of Co-operative Societies and requested him to issue license and it was alleged that the said officer demanded a bribe amount of Rs.1500/- to grant license and it was also stated that accused No.1 had instructed the complainant that the bribe amount should be handed over during the office hours to a case worker, one A. S. Giri, accused No.2 and that immediately on payment of the bribe amount, the license would be handed over. It is in this background that a complaint was lodged. On receipt of the complaint, the Police Inspector, Lokayukta Police Station, Madikeri is said to have registered a case in Crime No.6/2001. It is claimed that the complainant had handed over 15 currency notes of Rs.100/- denomination in order to trap the accused while receiving the bribe amount red-handed and in this regard, the Police had made elaborate preparations to trap the accused and therefore had requisitioned the presence of panch witnesses for the entrustment mahazar and for drawing up of a trap mahazar and the proceedings that would follow. Therefore, in the presence of two Government officials namely, P.R. Chinnappa, Assistant Apiculture Development Officer and Chandrahasa, Senior Training Inspector were requisitioned to go over to the office of the Lokayukta and they were instructed about the proceedings that would follow and they had agreed to act as panch witnesses. They were named as Panch Witness Nos. 1 and 2 and they were made aware of the contents of the complaint and in their presence, the currency notes were handed over to them to endorse the numbers of the currency notes and thereafter the currency notes were treated with phenolphthalein powder and the notes were accounted and the complainant was asked to carry the tainted notes. The panch witnesses as well as the complainant were instructed as to the manner in which the trap would be executed and after carrying out further proceedings insofar as the trap proceedings are concerned, all of them, namely, the Police Inspector, the complainant and the panch witnesses and other staff members proceeded to the office of the Assistant Registrar of Co-operative Societies and upon reaching the vicinity of the office, the panch witnesses were again instructed as to their respective role and that once the signal was given by the complainant of bribe having been received by the accused, they would move in to arrest the accused. Therefore, at about 3.10 p.m., on the same day, namely, 18.9.2001, the complainant is said to have walked into the office of the accused and had then come out and had signalled the squad, which was waiting outside and immediately, the Police and his staff had moved in and found accused No.2 inside the chamber and he was caught hold of. And thereafter, it was noticed that accused No. 1 was not present inside the chambers and it was only accused No.2 who was present there. It was narrated by the complainant that accused No.2 had demanded the bribe amount in order to hand over license and that he had been instructed by accused No.1 to receive the money and accordingly had received the bribe amount and had placed the currency notes on the table after counting the same. Accordingly, the Police proceeded to wash his hands in Sodium Carbonate solution and the solution is said to have turned pink in colour, thereby establishing that accused No.2 had handled the tainted currency notes. Accordingly, the Police proceeded to wash his hands in Sodium Carbonate solution and the solution is said to have turned pink in colour, thereby establishing that accused No.2 had handled the tainted currency notes. The evidence of the same was collected and further proceedings were taken to complete the trap mahazar. While this procedure was on, accused No. 1 was said to have returned to the office and he was called upon to provide his explanation and he had denied the knowledge of any such demand for bribe or the pendency of any such work at the instance of PW. 1. It is in this background that further proceedings were taken up and a charge-sheet was submitted before the Special Court, Madikeri and the accused had stood trial. They had pleaded not guilty to the charges and claimed to be tried on the charges having been framed. Thereafter, the prosecution had tendered evidence of 13 witnesses and marked several exhibits and material objects. After recording the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973, the court below had framed the following points for consideration: "1. Whether the prosecution proves that, the A-1 and A2 being the public servants working as Assistant Registrar of Co-operative Societies and S.D.A. in the office of Assistant Registrar of Co-operative Societies at Madikeri, while discharging their duties on 18.9.2001 at about 3.20 p.m., in their office, A-l demanded Rs. 1,500-00 from the complainant/S.E. Laxmaiaih as bribe for putting up the case papers for issuing the licence to 'Diamond Finance and Investments', Shanivarsanthe and A-l directed A-2 to receive the bribe amount and A-2 has received the bribe amount of Rs. 1,500-00 from the complainant as illegal gratification and thereby, both accused have committed the offence punishable under Section 7 of the Prevention of Corruption Act, beyond all reasonable doubts? 2. Whether the prosecution further proves that, on the above said date, time and place, A-1 and A-2 being the public servants, by abusing their official position as such public servants while discharging their duties for putting up the file of the complainant before A-l and for issuing Licence, A-2 accepted an illegal gratification Rs. 2. Whether the prosecution further proves that, on the above said date, time and place, A-1 and A-2 being the public servants, by abusing their official position as such public servants while discharging their duties for putting up the file of the complainant before A-l and for issuing Licence, A-2 accepted an illegal gratification Rs. 1,500-00 from CW-1 on the direction of A-1 and thereby, committed the offence punishable under Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, beyond all reasonable doubts?" The court below has held the above points in the negative and acquitted the accused. It is that which is under challenge in the present appeal. 4. The learned Special Public Prosecutor would contend that PW.1, who was the complainant had turned hostile. However, PWs.2 and 3, who were the panch witnesses for the entrustment and trap mahazar proceedings had fully supported the case of the prosecution. PW.4, on whose behalf the application for license to start a business in the name and style of M/s. Diamond Finance and Investments was filed, had also not supported the case of the prosecution and had turned hostile. However, the fact that the complaint was duly signed by PW.1 is not denied or that the bribe amount was handed over by PW. 1 is also not denied. This coupled with the evidence of PWs.2 and 3 would certainly establish the factum of demand and acceptance by the accused and therefore, the court below having negated the case of the prosecution merely on account of PW. 1 or PW.4 having resiled and not having supported the case of the prosecution, contrary to their statements made earlier, did not deter the trial court from accepting the case of the prosecution of having brought the charges home. It is emphasized that the oral evidence of Pws.2, 3 and 5 to 13 as well as the documentary evidence would clearly establish that accused No.1 had demanded Rs. 1,500/- from the complainant as bribe, in order to issue a license as stated above and that he had also instructed the complainant that accused No.2 would receive the amount on his behalf and these glaring circumstances which have been established by cogent evidence being over looked only on the basis that PW. 1 has not supported the case of the prosecution or that PW. 1 has not supported the case of the prosecution or that PW. 1, the complainant had no official favour to be granted in his favour by the accused was wholly irrelevant, as a criminal complaint can be instituted by any person and merely because PW. 1 had no official favour to be granted in his favour was not a ground to negate the case of the prosecution. PW.4 having stated that he had not authorised PW.1 to represent him and approach the accused for a license or to receive the license after it was granted was also without reference to Exhibit P.4, which is a letter of authorization duly signed by PW.4 and the signature on the document is not denied. However, it is stated that PW.5 was a Chartered Accountant engaged by PW.4 and that it was a usual practise to routinely provide signed blank papers to enable the Chartered Accountant to carry out formal procedures. And the claim that one such blank paper has been utilized as authorization letter has been glibly accepted by the trial court, when the signature on the document was not denied by PW.4. The court below has also overlooked the contradictions and discrepancies in the evidence of PWs. 1,4 and 5. It is also pointed out that the prosecution has taken much pain to establish the fact that on a case having been registered and investigation having been completed, the prosecution had obtained sanction from the competent authority to prosecute the accused and the evidence tendered by the Police officials as regards the sequence of events as also the panch witnesses and the chemical examiner and other formal witnesses having completely endorsed the sequence of events and the procedures that were followed, has been trashed by the court below only on the basis that PW. 1 and PW.4 had turned hostile notwithstanding the establishment of all other essential ingredients to bring home charges against the accused. 5. However, the learned counsel for the respondents would contend that there is no error committed by the court below in the face of the circumstance that PW. 1, the complainant was admittedly acting on behalf of PW.4 and it was necessary therefore for PW.1 at least to stand by his complaint. It is on record that he had turned hostile and had completely denied the case of the prosecution. 1, the complainant was admittedly acting on behalf of PW.4 and it was necessary therefore for PW.1 at least to stand by his complaint. It is on record that he had turned hostile and had completely denied the case of the prosecution. Even assuming that PW.1 had no official favour to be granted in his favour and he had merely filed a complaint in respect of the accused having demanded bribe, in order to grant license against the application of PW.4, it was necessary for the prosecution to draw sustenance from the evidence of PW.4. However, PW.4 has also been treated as a hostile witness as he has completely denied the very filing of an application or authorizing any person to file an application on his behalf. He has categorically stated in his cross-examination that PW. 1 had never approached him. Neither his partner nor PW.5, a Chartered Accountant had informed him that any bribe amount was demanded by accused Nos. 1 and 2. Further, he had stated that he had never given any bribe amount to PW.1 or PW.5 to be handed over to the accused and he has also asserted that he had the means to file an application seeking license before the office of the accused and at that point of time, there was no demand made for bribe. These categorical assertions by the main witnesses for the prosecution would completely dilute the case of the prosecution, in fact, would take away the very foundation of the case of the prosecution. Reliance being placed on the supporting evidence, when the main case itself is dissolved by virtue of the witnesses not standing by the case of the prosecution, would be of no avail and the contention of the learned Special Public Prosecutor that the court ought to have held against the accused on the basis of such evidence is wholly untenable. The learned Counsel for the respondents would seek to place reliance on a judgment of the Supreme Court in the case of V. Sejappa v. State by Police Inspector, Lokayukta, Chitra-durga (2016) SAR (Criminal) 674. The learned Counsel for the respondents would seek to place reliance on a judgment of the Supreme Court in the case of V. Sejappa v. State by Police Inspector, Lokayukta, Chitra-durga (2016) SAR (Criminal) 674. It is contended that the Supreme Court has reviewed the case law as to the principles which are required to be followed by the appellate court in case of an appeal against the order of acquittal and has quoted with approval the observations of the Supreme Court in Muralidhar v. State of Karnataka (2014) 5 SCC 730 as follows: "12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, AIR 1954 SC 1 , Madan Mohan Singh, AIR 1954 SC 637 , Atley AIR 1955 SC 807 , Aher Raja Khima, AIR (1956) SC 217, Balbir Singh, AIR 1957 SC 216 , M.G. Agarwal, AIR 1963 SC 200 , Noor Khan, AIR 1964 SC 286 , Khedu Mohton (1970) 2 SCC 450 , Shivaji Sahabrao Bobade (1973) 2 SCC 793 , Lekha Yadav (1973) 2 SCC 424 , Khem Karan (1974) 4 SCC 603 , Bishan Singh (1974) 3 SCC 288 , Umedbhai Jadavbhai (1978) 1 SCC 228 , K. Gopal Reddy (1979) 1 SCC 355 , Tota Singh (1987) 2 SCC 529 , Ram Kumar (1995) Supp 1 SCC 248), Madan Lal (1997) 7 SCC 677 , Sambasivan (1998) 5 SCC 412 , Bhagwan Singh (2002) 4 SCC 85 , Harijana Thirupala (2002) 6 SCC 470 , C. Antony (2003) 1 SCC 1 , K. Gopalakrishna (2005) 9 SCC 291 , Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415 . It is not necessary to deal with these cases individually. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (I) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court; (II) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (III) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (IV) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." Therefore, the learned Counsel would submit that in the light of the principles laid down by the Supreme Court, it would be a travesty of justice if the reasoning of the court below is to be reversed, even if a different view is capable of being taken on the re-evaluation of the evidence in variance with the view of the court below and hence would seek dismissal of the present appeal. 6. In the light of the above rival contentions and the state of the law, the credibility of the evidence of PW. 6. In the light of the above rival contentions and the state of the law, the credibility of the evidence of PW. 1 is completely washed away, as rightly observed by the trial court and therefore, the complaint is no longer supported by the evidence of PW. 1. When PW.4, on whose behalf, an application was said to have been made and in respect of which, the bribe amount was said to have been claimed, is also not supported by the evidence of PW.4. The lack of evidence is compounded. Consequently, reliance sought to be placed on the evidence, which at best would corroborate the case of the prosecution, if it had been established otherwise, would be of no avail. The contention of the learned Special Public Prosecutor that the court is not precluded from appreciating that evidence which would at least support the undisputed facts that emerge even from the evidence of PWs. 1 and 4, even though they have turned hostile, would not be a safe procedure to be followed in seeking to bring home charges against the accused. That would result in a miscarriage of justice. The prosecution is required to establish its case beyond all reasonable doubt. 7. Therefore, to embark on an exercise of stitching together a case on the basis of the disjointed facts, not supported by the prime witnesses for the prosecution, would certainly result in a grave irregularity and would be to the prejudice of the accused, who are certainly entitled to the benefit of doubt. 8. Therefore, there is no substance in this appeal and the appeal is dismissed.