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2022 DIGILAW 136 (KAR)

State of Karnataka v. Ramesh

2022-02-03

V.SRISHANANDA

body2022
JUDGMENT 1. The present appeal is filed by the State/Lokayukta challenging the judgment passed in Special Case No.577/2010 dtd. 7/7/2015 on the file of Principal District and Sessions Judge, Kalaburagi. 2. Brief facts of the case are as under :- One Mahesh lodged a complaint with Lokayukta Police on 25/2/2009 stating that his cousin Smt.Akkamahadevi has applied for Staff Nurse post and she has been serving as Staff Nurse in Primary Health Care Centre, Hasinapur village in Shorapur Taluk and she has to furnish the caste certificate for the purpose of drawing salary and she had applied the same to the District Backward Classes and Minority Welfare Office, Kalaburagi. In that regard, the complainant met one Ramesh (accused) who in turn demanded for Rs.2,000.00 as illegal gratification for furnishing the caste certificate. Since the complainant was not interested in paying the same, the discussion took place and it was reduced to Rs.1,000.00. Complainant was not even interested for the said amount and therefore, he approached the Lokayukta Police. Being convinced about the conservation that took place between the accused-Ramesh and the complainant, Lokayukta Police registered a case in Crime No.2/2009 for the offences punishable under Ss. 7, 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act, 1988 and arranged for the trap. On the same day at about 5.15 p.m. in the evening the accused met the complainant in Shanthi Sagar Hotel and near the pan shop, the accused took the illegal gratification of a sum of Rs.1,000.00 which was in the denomination of two Rs.500.00 currency notes smeared with phenolphthalein powder and pre-signal was given and trap party raided on the accused and recovered the tainted money from the custody of the accused and conducted the colour test and arrested the accused and drafted a trap mahazar. Thereafter, accused was arrested and the matter was investigated and Lokayukta police filed charge-sheet. 3. Presence of accused was secured before the learned Magistrate and Charge was framed. Accused pleaded not guilty and trial was held. 4. In order to prove the case of the prosecution, prosecution in all e*amined 13 witnesses as PWs.1 to 13 and relied on 23 documents which were e*hibited and marked as E*s.P1 to P.23. 10 material objects were also relied on by the prosecution, which were marked as MOs.1 to 10. 5. Accused pleaded not guilty and trial was held. 4. In order to prove the case of the prosecution, prosecution in all e*amined 13 witnesses as PWs.1 to 13 and relied on 23 documents which were e*hibited and marked as E*s.P1 to P.23. 10 material objects were also relied on by the prosecution, which were marked as MOs.1 to 10. 5. On conclusion of the prosecution evidence, accused statement as contemplated under Sec. 313 of Cr.P.C was recorded. Wherein the accused has denied all the the incriminatory materials found against him and has answered before the court that he would submit written submissions before the court as is contemplated under Sec. 313(5) of Cr.P.C. Likewise, he has furnished the written submission wherein he has stated that he has not obtained any money from the complainant-Mahesh and the tainted money was trusted into his pant pocket by the complainant with ulterior motive. 6. Taking note of these aspects of the matter and also taking note of the admissions given by PW.10 who is actual applicant who sought for issuance of caste certificate, the learned trial Judge acquitted the accused by the impugned judgment. 7. Being aggrieved by the same, the Lokayukta has preferred the present appeal with the following grounds :- * That, the Trial Court has without proper appreciation of the evidence and material placed on record by the prosecution has proceed to pass the judgment and order acquitting the accused/respondent for the offences he has been charge sheeted, hence the same is liable to be set aside. * That, the reasons assigned by the learned Special Judge while passing the order of acquittal of the charged offence are not justifiable and unsustainable in the eye of law. * That, the prosecution has e*amined in all 13 witnesses as PW-1 to PW-13 and got marked E* P-1 To P-23. All the witnesses have supported the case of the prosecution. PW-1 and 2 who are the punch witnesses have deposed before the court regarding drawing of entrustment mahazar and fully supported the prosecution case, but the Special Court has not considered these aspects and wrongly concluded that the prosecution has failed to prove the charge against the accused holding that there are inconsistencies in their evidence. In fact they are not material contradictions, hence the appreciation of the trial court is incorrect. In fact they are not material contradictions, hence the appreciation of the trial court is incorrect. * That, admittedly the prosecution has established the demand of bribe, acceptance and subsequently recovery of the amount from the accused. Hence, the prosecution has established the offences against the accused punishable under sec. 7 and 13(1) (d) R/w sec. 13(2) of the Prevention of Corruption Act 1988. * That, in support of the complainant, PW-3 who is the complainant has also supported the case of the prosecution, PW-4 who is the Manager of Distinct, Backward Classes and Minorities Welfare Office, Bidar has also supported the case of the prosecution and deposed before the Court that the accused is working as FDA who was entrusted with the work of Account Sec. and also issuing of validity Certificate. PW-5 deposed regarding issuance of service particulars of the accused and PW-7 is the Engineer who has drawn the sketch of the scene of occurrence, PW-8 who is the Commissioner of Backward lasses and Minorities Welfare Department who issued the Sanction order for prosecuting the accused, all the witnesses have deposed before the court and supported the case of the prosecution. Hence there are no grounds for the Spl Court to acquit the accused, which is in violation of Sec. 20 of the P. C. Act. * That, PW-12 and 13 are the Investigations officers who have conducted the investigation in the above case and have deposed in length about the investigation and also deposed regarding recording of statements of the witnesses, filing of the charge sheet. And has supported the case. * That, even the conversation recorded has been displayed which establishes the demand and acceptance of bribe by the accused. The evidence of the punch witnesses who have conducted pre trap and post trap punchnamas have corroborated the case of the complainant and looking to the evidence and the documents marked it clearly establishes the acceptance of the bribe which attract the penal provisions of Sec. 7 and 13(1) (d) R/w Sec. 13(2) of the Prevention of Corruption Act 1988. * That, the learned Session Judge has ignored the provisions of Sec. 20 which gives the presumption of acceptance of gratification. * That, the learned Session Judge has ignored the provisions of Sec. 20 which gives the presumption of acceptance of gratification. E*cept the denial of the allegations made against the accused person he has not rebutted the case of prosecution and the accused has not adduced any defense evidence, hence the Judgment and order of acquittal holding that the prosecution has failed to establish the charge against the accused person is illegal, improper and against the established principals of law and procedure and hence the same is liable to be set aside. The ruling submitted by the prosecution has not been considered at all and there is no observations on that point, hence the judgment is perverse. That, viewed from any angle the impugned judgment and order of acquittal passed by the trail court is not only illegal, but also perverse; hence interference of this Hon'ble Court is sought for. 8. Reiterating the above grounds, learned counsel Sri Subhash Mallapur vehemently contended that the trial court has not properly appreciated the material evidence on record and wrongly acquitted the accused resulting in miscarriage of justice and sought for allowing the appeal. 9. He also pointed out that the prosecution has successfully established the demand and acceptance of the bribe money and colour test has turned positive, the e*planation offered by the accused for handling of the tainted money is vague in nature and the same has not been properly appreciated by the learned trial Judge and sought for allowing the appeal. 10. Per contra, learned counsel appearing for the accused/respondent pointed out and that there is a categorical admission made by PW.10 who has filed an application seeking caste certificate. He further pointed out that PW.10-Akkamahadevi has specifically admitted that on 13/2/2009 itself, the accused had attended the application filed by her and sent the same to the Zilla Panchayath Officer which also finds place in the trap mahazar relied on by the very prosecution itself and therefore, the learned trial Judge has rightly justified in acquitting the accused and sought for dismissal of the appeal. 11. In view of the rival contentions, following points would arise for consideration :- 1. 11. In view of the rival contentions, following points would arise for consideration :- 1. Whether the appellant/Lokayukta has successfully established before the court that accused in order to show official favour to Akkamahadevi (PW10) demanded sum of Rs.2,000.00 at the first instance and agreed to receive Rs.1,000.00 from the complainant PW.3 and took Rs.1,000.00 on 25/2/2009 and thus committed an offence punishable under Sec. 7, 13(1)(d) and punishable under Sec. 13(2) of the Prevention of Corruption Act ? 2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference ? 3. If so, what order ? 12. In order to establish an offence under Ss. 7 and 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, the prosecution is required to establish following three ingredients. - Demand and acceptance of bribe money; - Handling of tainted money by the accused on the day of trap (colour test); - Work of the complainant must be pending as on the date of trap with the accused. 13. With the above legal requirements, when the material evidence on record is analyzed, the prosecution case suffers for want of substantive evidence in the form of the oral testimony of the complainant who has turned hostile to the case of the prosecution in toto. 14. In the light of the above legal requirement, the materials on record is to be re-appreciated by this court. 15. Learned counsel for the appellant Sri Subhash Mallapur vehemently contended that in respect of the application filed by PW.10 seeking caste certificate, PW.3 - Mahesh who is relative of PW.10 approached the accused and accused demanded Rs.2,000.00 as the illegal gratification to attend the application and it was settled at Rs.1,000.00 and PW.3 was not interested in parting away Rs.1,000.00 as illegal gratification as demanded by the accused and therefore, lodged a complaint with Lokayukta and trap has been successful and colour test stood positive and therefore, prosecution has proved its case beyond all reasonable doubt. He also pointed out that the shadow witnesses, complainant have supported the case of the prosecution in toto and therefore, trial Court ought to have convicted the accused for the aforesaid offences. 16. This court meticulously considered the evidence of PW.2 and PW.3. PW.2 is the shadow witness who deposed in line with the contents of e*perimental mahazar and trap mahazar. 16. This court meticulously considered the evidence of PW.2 and PW.3. PW.2 is the shadow witness who deposed in line with the contents of e*perimental mahazar and trap mahazar. However, in his cross- e*amination he admits that he was standing in the second door of Shanti Sagar Hotel and if he stands near the second door of the Shanti Sagar Hotel, what transpires near the pan shop is not visible or not heard by him and he has not seen the complainant-PW.3 handing over the tainted money to the hands of accused. 17. Further, PW.3 has also supported the case of the prosecution deposing in line with the complaint averments, trap and e*perimental mahazar in his e*amination in chief. However, in the cross-e*amination he has stated that himself and Rajashekar went to the place of incident, accused arrived at two and half hours later and called him outside the hotel near pan shop. 18. He admits that there is a auto stand situated in front of Shanti Sagar hotel and there is a electrical store adjacent to Shanti Sagar hotel and there are number of books shop and other shops in and around the place of incident. 19. He admits that if somebody stands near the second door of Shanti Sagar Hotel, what transpires near the pan shop would not be visible. 20. He specifically admitted in his cross- e*amination that the accused met him near the pan shop and after handing over the tainted money to him there is no conversation between him and the accused. 21. These aspects of the matter have been rightly appreciated by the learned trial Judge. 22. The important aspect assuming for a moment that the prosecution has been able to prove the trap and the colour test, the important factor that has to be looked into by the court for recording an order of conviction for the above said offences is that the work of the complainant must be pending with the accused. In the case on hand, in this regard, the testimony of PW.10 assumes great importance. PW.10 is the person who has actually applied for grant of caste certificate in the office of the accused. She has specifically admitted in her cross-e*amination that as on date 13/2/2009 there no work pending with her. In the case on hand, in this regard, the testimony of PW.10 assumes great importance. PW.10 is the person who has actually applied for grant of caste certificate in the office of the accused. She has specifically admitted in her cross-e*amination that as on date 13/2/2009 there no work pending with her. As could be seen from E*.P.16 which is possessed in the office of the accused with regard to issue of caste certificate and also contents of trap mahazar, it is seen that accused had already attended the application filed by the Akkamahadevi on 13/2/2009 itself and the contents of mahazar clearly shows that the application was sent to Zilla Panchayat Office and from there it was required to come back to the DC Office and then the certificate would be issued. No doubt the original sindhuthva certificate finding the photograph of the Akkamahadevi-PW.10 is not signed by the signing authority which is available in the file. It is pertinent to note that it is not the accused who is required to sign the caste certificate and it was pending with the other officials of the office of the accused and the job that was entrusted to the accused as on 12/2/2009 itself having been completed, it cannot be construed that any work of the PW.10 was pending with the accused as on the date of trap i.e., 25/2/2009. Following the dictum of the Hon'ble Ape* Court in the case of A.Subair v. State of Kerala reported in (2009) 6 Supreme Court Cases 587. 23. This court is of the considered opinion that the prosecution has not been able to prove that the accused handled the tainted money only with an intention to show official favour in respect of the application filed by PW.10 seeking grant of caste certificate. Accordingly, mere proving of the trap and the colour test stood positive itself would not be sufficient enough to record an order of conviction against the accused as is contended on behalf of the prosecution/Lokayukta. 24. Further, whenever a duly constituted court records an order after full-fledged trial, the innocence of the accused stands reinforce. 25. Further, in a given case if two views are permissible, the view that favours the accused must be preferred. 24. Further, whenever a duly constituted court records an order after full-fledged trial, the innocence of the accused stands reinforce. 25. Further, in a given case if two views are permissible, the view that favours the accused must be preferred. Following these celebrated settled principles of criminal jurisprudence, this court is of the considered opinion that none of the grounds urged in the appeal memorandum stand merit and accordingly point Nos.1 and 2 are answered in the negative and pass the following ORDER Appeal is dismissed. Bail bonds if any stands discharged.