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2021 DIGILAW 946 (KAR)

Maruti Hanumanthappa Madivalar v. State

2021-11-15

M.G.UMA

body2021
JUDGMENT : 1. The appellant being accused before the Trial Court in Spl.S.C.No.72/2008 charged for the offence punishable under Ss. 7 and 13(1)(d) read with Sec. 13 (2) of the Prevention of Corruption Act, 1988 ("PC Act" for short) who is convicted by the IV Additional District and Sessions Court and Special Court (PCA), Belagavi ("the Trial Court" for short) vide judgment of conviction and order of sentence dtd. 26/8/2011 has preferred this appeal. 2. Brief facts of the case are that, PW.1 lodged the first information with respondent-Police alleging that the accused being the public servant, working as the Village Accountant in Kodaganur village of Athani Taluk. When the informant approached him with reference to the application filed by his maternal aunt Smt.Roshanbi, for grant of old age pension, he had demanded illegal gratification of Rs.1,500.00 for the purpose of attending the application. When the informant requested and tried to bargain, the accused stated that he had to pay Rs.1,000.00 for his higher officer i.e., the Deputy Tahasildar and Rs.500.00 for himself. When the informant paid Rs.300.00 to the accused, the accused again demanded at least Rs.700.00 more for the purpose of showing the official favour. The complainant not being interested in payment of illegal gratification filed first information as per Ex.P.1 with the respondent-police and requested for initiation of legal action against the accused. 3. It is the contention of the prosecution that on the basis of the first information lodged by the informant, the bait money was entrusted to PW.1 in the presence of two panchas after smearing with phenolphthalein powder, under a pre trap panchanama. PW.1 along with PW.2 who is the shadow witness met the accused while he was in his house and the accused had demanded Rs.700.00 for attending to the application in question and accordingly PW.1 tendered the phenolphthalein 4. Powder smeared currency notes which was accepted by him. The Investigating Officer along with pancha-2 entered the house of the accused on receiving the signal by PW.1 and trapped the accused. Both the hand wash tested positive for the purpose of phenolphthalein powder, the tainted money was recovered from the possession of the accused. The trap panchanama was drawn at the spot. After completing the investigation, the charge sheet was came to be filed against the accused for the above said offences. 4. Both the hand wash tested positive for the purpose of phenolphthalein powder, the tainted money was recovered from the possession of the accused. The trap panchanama was drawn at the spot. After completing the investigation, the charge sheet was came to be filed against the accused for the above said offences. 4. The accused appeared before the Court in response to the summons issued by the Trial Court and pleaded not guilty for the charges leveled against him. 5. The prosecution examined PWs.1 to 9, got marked the documents as per Exs.P.1 to 24 and identified MOs.1 to 9 in support of its contention. Accused denied all the incriminating materials available on record in his statement recorded under Sec. 313 of Cr.P.C. But he has not chosen to lead any evidence in support of his defence. 6. The Trial Court after taking into consideration of all these materials on record, recorded the conviction of the accused vide its judgment of conviction and order of sentence dtd. 24/8/2011 and accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay find of Rs.2,500.00, in default simple imprisonment for a further period of one and half months for the offence punishable under Sec. 7 of the PC Act and the accused further sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.2,500.00, in default simple imprisonment for a further period of two months for the offence punishable under Sec. 13(1) (d) read with sec. 13(2) of the PC Act. 7. Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused is before this Court seeking to set aside the impugned judgment of conviction and order of sentence and to acquit him to the offences alleged. 8. Heard Sri A.R.Patil, learned counsel for the appellant and Sri Anil Kale learned counsel for respondent. 9. Learned counsel for the appellant submitted that, the accused was working as the Village Accountant in Kodaganur village of Athani Taluk. The complainant had filed an application for sanction of the old age pension in favour of his maternal aunt Smt.Roshanbi and the said file was pending with the Deputy Tahasildar. The accused is not the competent authority to sanction the old age pension and therefore no work was pending with him. The complainant had filed an application for sanction of the old age pension in favour of his maternal aunt Smt.Roshanbi and the said file was pending with the Deputy Tahasildar. The accused is not the competent authority to sanction the old age pension and therefore no work was pending with him. However, as per Ex.P.13, the explanation submitted by the accused at the initial sage, it is specifically stated that PW.1 voluntarily came and paid an amount of Rs.700.00, even though there was no demand by the accused. When the prosecution has not proved the demand and acceptance of the bribe amount, the Trial Court could not have convicted the accused. Moreover, it is contended by the learned counsel for the appellant that there are material contradictions in the evidence of PWs.1 and 2 with regard to the demand and acceptance of the illegal gratification. The Trial Court ignored all these facts and circumstances and proceeded to convict the accused. 10. Learned counsel for the appellant relied on the decision of the Hon'ble Apex Court in N.Vijaykumar Vs. State of Tamil Nadu, (2021) (3) SCC 687 to contend that, the powers of the High Court in an appeal is well defined and the Court cannot proceed to convict the accused without taking into consideration the material contradictions pointed out before the Court. 11. Learned counsel also placed reliance on the decision of this Court in Suresh Kumar Vs. State by Karnataka Lokayukta Police, Tumakuru, (2016) 1 KCCR 228 to contend that the prosecution is required to prove demand and acceptance of the illegal gratification and unless the same is proved, conviction of the accused cannot be recorded. 12. Relying on these decisions, leaned counsel for the appellant submits that in the present case the prosecution failed to prove the guilt of the accused beyond reasonable doubt and therefore, the Trial Court committed an error in convicting the accused and also sentencing him for the above offences. Accordingly he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence in the interest of justice. 13. Alternatively the learned counsel for the appellant submitted that, the appellant who was working as Village Accountant is now retired from service and aged 67 years and therefore leniency is to be shown in his favour. Hence, he prays for appropriate orders under the circumstances. 14. 13. Alternatively the learned counsel for the appellant submitted that, the appellant who was working as Village Accountant is now retired from service and aged 67 years and therefore leniency is to be shown in his favour. Hence, he prays for appropriate orders under the circumstances. 14. Per contra, learned counsel for the respondent opposing the appeal submitted that, it is the specific contention of the prosecution that the accused being the public servant working as Village Accountant was in the custody of the file relating to Smt.Roshanbi who is the maternal aunt of the complainant and to attend to the file he demand illegal gratification of Rs.1,500.00 initially and received Rs.300.00 and subsequently after bargaining he demanded at least Rs.700.00 to discharge his official duty. Therefore, the informant lodged the first information as per Ex.P.1. Entrustment panchanama was drawn in the presence of panchas and when PW.1 met accused in his house along with the shadow witness, the accused again demanded Rs.700.00 and accordingly PW.1 paid the tainted money which was accepted by the accused. The Investigating Officer recovered this tainted money from the possession of the accused in the presence of panchas. Earlier to that both the hands of accused tested positive for the presence of phenolphthalein powder, which suggests acceptance of the bribe amount. Both PWs.1 and 2 categorically stated before the Court regarding demand and acceptance of the illegal gratification by the accused and there is absolutely no contradictions elicited from these witnesses. The Trial Court rightly proceeded to convict the accused on the basis of the materials on record, there is no illegality or perversity in the judgment passed by the Trial Court and therefore he prays for dismissal of the appeal as devoid of merits. 15. Perused the materials including the Trial Court records. 16. The point that would arise for consideration of this Court is as follows; "Whether the impugned judgment of conviction and order of sentence dtd. 26/8/2011 passed in Spl.C.C.No.72/2008 by the IV Additional District and Sessions Court and Special Court (PCA), Belgaum is liable to be interfered with by this Court?" 17. My answer to the above point is in the 'negative' for the following : : REASONS : 18. 26/8/2011 passed in Spl.C.C.No.72/2008 by the IV Additional District and Sessions Court and Special Court (PCA), Belgaum is liable to be interfered with by this Court?" 17. My answer to the above point is in the 'negative' for the following : : REASONS : 18. It is the specific contention of the prosecution that the accused was working as Village Accountant and the file relating to the applicant Smt.Roshanbi, which was submitted by the complainant who is her close relative, was in his custody. The accused demanded and accepted the illegal gratification to show the official favour. 19. To prove this contention, the prosecution examined the complainant himself as PW.1. This witness categorically stated regarding pendency of the work with the accused and demanding of illegal gratification. Witness also stated regarding the entrustment panchanama, entrusting the phenolphthalein powder smeared currency notes to him and approaching the accused in his house, wherein the accused again demanded Rs.700.00 and stated that, if Rs.700.00 is paid, he will do his part of the job. Accordingly the informant tendered the tainted money entrusted to him, which was accepted by the accused. It is suggested to this witness during cross-examination by the learned counsel for the accused that on 11/6/2007, the accused had taken the file relating to the complainant promised him to attend to the same and get the work done through the Revenue Inspector. On going through the crossexamination of this witness in detail there is absolutely no contradiction elicited by the witnesses with reference to the first information lodged by him or in respect of the entrustment panchanama or trap panchanama. There is also no contradiction in the matter of demand and acceptance of the bribe amount as stated by the witness. 20. PW.2 is the shadow witness who also supported the case of the prosecution by saying that the entrustment panchanama was drawn in his presence and tainted money was entrusted to PW.1. He also went to the house of the accused along with PW.1 and the accused specifically stated that he will verify the file concerned, in case the amount is paid to him. Accordingly, the complainant paid the entrusted amount which was accepted by the accused. This witness was also cross-examined at length, but nothing has been elicited from him to disbelieve his version. 21. Accordingly, the complainant paid the entrusted amount which was accepted by the accused. This witness was also cross-examined at length, but nothing has been elicited from him to disbelieve his version. 21. It is the contention of the learned counsel for the appellant that there are material contradictions in the evidence of PWs.1 and 2. Except contending so, learned counsel failed to point out such contradictions in the evidence of PWs.1 and 2. According to learned counsel for the appellant, the evidence of PWs.1 and 2 with regard to demand for Rs.700.00 when they met him in his house was in contradiction. But on going through the evidence of PWs.1 and 2, there is absolutely no contradiction with regard to the demand made by the accused for attending the file of the complainant. 22. It is pertinent to note that Ex.P.13 is the explanation given by the accused to the Investigating Officer immediately after his trapping. This document is not in dispute as learned counsel for the appellant categorically admitted that this is the first defence taken by the accused. As per Ex.P.13, the accused stated that he had not demanded any money from PW.1, but he voluntarily paid Rs.700.00 and thereafter went out of his house. Therefore, it is clear that the accused admits that Rs.700.00 was paid by the complainant to him. This explanation of the accused if considered in the light of evidences of PWs.1 and 2 who have categorically stated that the accused demanded and accepted Rs.700.00 in his house, the contention of the prosecution cannot be doubted. Even though, the witnesses were cross-examined at length, nothing has been elicited from them to contend that PW.1 voluntarily paid the amount of Rs.700.00 to the accused as contended in Ex.P.13. Therefore, I am of the opinion that there are no merits in the contention taken by the accused. 23. The next contention taken by the learned counsel for the appellant is that, the accused is not the competent authority to sanction the old age pension in favour of Smt.Roshanbi. It is not the contention of the prosecution that the accused being the Village Accountant was the competent authority to sanction the old age pension. 23. The next contention taken by the learned counsel for the appellant is that, the accused is not the competent authority to sanction the old age pension in favour of Smt.Roshanbi. It is not the contention of the prosecution that the accused being the Village Accountant was the competent authority to sanction the old age pension. But on the other hand it is the contention of the prosecution that, the accused being the Village Accountant had to issue the certificate regarding the age, address and income of the applicant and to do the official favour, he demanded illegal gratification while the file was with him. File in question was in the custody of the accused is not in dispute. To do his part of the job i.e., issuance of age, residential and income certificate, the accused demanded illegal gratification and received Rs.700.00 in his house as contended by the prosecution. The fact that the file was with the accused is never disputed by the accused on the other hand there is specific suggestions to PWs.1 and 2 that the file was with the accused at the relevant point of time. Under such circumstances, the contention of the learned counsel for the appellant that the accused was not authorized to sanction the old age pension in favour of the applicant and therefore he cannot be held responsible, cannot be accepted. 24. Learned counsel for the appellant relied on the decision of the Hon'ble Apex Court in N.Vijaykumar (supra). In the said case, initially the accused was acquitted by the Trial Court who are convicted by the High Court and under such circumstances, the Hon'ble Apex Court considered the powers of the High Courts to interfere in the appeal against acquittal recorded by the Trial Court. There is nothing in the said judgment to support the contention taken by the accused. Even though, learned counsel for the appellant contended that the decision is supporting his defence, he failed to point out the relevant portions of the judgment in support of his contention. The legal position with regard to the powers of the High Courts for interfering in the judgment of acquittal recorded by the Trial Court is well recognized. But the same is not applicable in the present case since the Trial Court has recorded the conviction of the accused. 25. The legal position with regard to the powers of the High Courts for interfering in the judgment of acquittal recorded by the Trial Court is well recognized. But the same is not applicable in the present case since the Trial Court has recorded the conviction of the accused. 25. Learned counsel for the appellant also placed reliance on the decision of this Court in Suresh kumar (supra) to contend that the demand and acceptance is to be proved by the prosecution. It is also well settled proposition of law which cannot be disputed. But on facts of the case, in Suresh kumar (supra) the shadow witness had not seen payment of the amount by the informant to the accused and the money was lying on the mat. It was also observed by Court that the money was actually demanded by accused No.2, who has been acquitted by the Trial Court. Under such circumstances, it was held that when there are no proof that accused No.1 demanded and accepted the money from the complainant, the presumption under Sec. 20 of the PC Act cannot be invoked. Accordingly, the accused was acquitted. But the said decision of coordinate Bench of this Court is of no help to the appellant in the present case as the facts and circumstances of the case are entirely different. 26. When the prosecution is successful in proving the demand and acceptance of the illegal gratification by the accused, the presumption under Sec. 20 of PC Act will come into operation and there is presumption that he accepted the undue advantage as motive or reward as referred to under Sec. 7 of the PC Act for performing his official duty. The burden shifts on the accused to rebut this presumption, either by cross-examining the material witness or by producing cogent materials or by stepping into to the witness box and deposing on oath to enable the Court to raise reasonable doubt about the case made out by the prosecution. But in the present case, the accused has not rebutted this presumption. Therefore, the fact remains that the prosecution is successful in proving the guilt of the accused for the above said offences beyond reasonable doubt. 27. I have gone through the impugned judgment of conviction passed by the Trial Court. But in the present case, the accused has not rebutted this presumption. Therefore, the fact remains that the prosecution is successful in proving the guilt of the accused for the above said offences beyond reasonable doubt. 27. I have gone through the impugned judgment of conviction passed by the Trial Court. The Trial Court has taken into consideration on all these materials on record and recorded the judgment of conviction of the accused, I do not find any reason to interfere with the same. 28. The last submission made by the learned counsel for the appellant that, the accused is already retired and now he is aged 67 years is of no consequence when the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Even though the accused is liable for maximum imprisonment for five years, for the offence under Sec. 7 of PC Act, the Trial Court sentenced him with minimum sentence i.e., to undergo rigorous imprisonment for a period of six months with fine. Similarly for the offence under Sec. 13(1)(d) punishable under Sec. 13(2) of PC Act, the maximum punishment is for a term which shall not be less than seven years. But the Trial Court sentenced the accused to undergo minimum sentence i.e., to undergo rigorous imprisonment for a period of one year with fine. Therefore, the Trial Court has already shown maximum leniency in sentencing the accused. 29. In view of the discussion held above, I do not find any reason to interfere with the judgment of conviction or order of sentence. In conclusion I answer the above point in the negative and accordingly the appeal is hereby dismissed.