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2022 DIGILAW 1509 (KAR)

State v. Chandrashikar Bhimappa Madar

2022-11-29

S.RACHAIAH

body2022
JUDGMENT 1. This appeal is filed by the appellant/complainant being aggrieved by the judgment and order of acquittal dtd. 7/6/2011 in Spl.Case No.173/2008 on the file of the IV Addl. District and Sessions Judge (Special Judge), Belagavi wherein the Trial Court acquitted the accused for the offence under Sec. 7, 13(1)(d) read with Sec. 34 of Prevention of Corruption Act, 1988 (for short, 'the Act'). 2. Briefly stated facts of the case are that: The complainant Patreppa Shivalingappa Radaratti, resident of Ujjinakoppa Ramadurga Taluk of Belagavi District had dug bore well in his land bearing Sy.No.26. He has obtained electrical supply for the said bore well. A transformer was sanctioned to the said bore well and it was under the repair. The complainant has approached HESCOM authority and asked them to get it repaired. The work was not attended even after three months was over. Being frustrated, the complainant approached accused who was working as Junior Engineer (Electrical), Katkol Sub-Division and requested him that the transformer was went out of order and asked him to get it repaired. The complainant was directed to pay the arrears of electricity charges to get a new transformer installed. It is the allegation of the complainant that the accused has demanded a bribe of Rs.6,000.00 to get the new transformer installed. After negotiation, it was settled for Rs.5,500.00. The complainant was not interested to pay the said amount to the accused. Hence, he approached Lokayukta Police Station, Belagavi and requested to take suitable action against the accused. Accordingly, a trap was arranged by the Lokayukta Police and directed the complainant to approach the accused and to pay the illegal gratification to the accused. Thereafter, the accused along with shadow witness went to the office of the accused and paid the amount of Rs.5,500.00. The accused after receiving the amount, kept in his pant pocket. At that time, Lokayukta Police have apprehended the accused and a trap panchanama was drawn and a case came to be registered for the offence under Sec. 7, 13(1) (d) read with 13(2) of the Act. After investigation, charge sheet was submitted by the complainant-Police. 3. In order to prove the case, the prosecution has examined in all 8 witnesses as PW-1 to PW-8 and also got marked 24 documents as Ex.P-1 to Ex.P-24 and 9 material objects were marked. After investigation, charge sheet was submitted by the complainant-Police. 3. In order to prove the case, the prosecution has examined in all 8 witnesses as PW-1 to PW-8 and also got marked 24 documents as Ex.P-1 to Ex.P-24 and 9 material objects were marked. The accused on his behalf examined two witnesses as DW-1 and DW-2 and he has not marked any documents. 4. The Trial Court after appreciating the oral and documentary evidence, acquitted the accused holding that the prosecution has failed to prove the case. The prosecution-Lokayukta being aggrieved by the judgment of acquittal, preferred this appeal. 5. Heard Sri Santosh B. Malagoundar, learned counsel for appellant and Sri Vijay K. Naik and Sri M.J. Peerjade, learned counsel for respondent. 6. Sri Santosh B. Malagoudar, learned counsel for the appellant submits that the judgment and order of acquittal passed by the trial Court is erroneous and not in accordance with law and therefore, it is liable to be set aside. 7. It is further submitted that the Trial Court ought to have considered the other circumstances and also the evidence of shadow witness and the panch witnesses. The evidence of official witnesses and independent witnesses like shadow witness and co-panch witness assumes significance and conviction can also be recorded on the basis of their evidence. Ignoring in considering their evidence led the impugned judgment be passed. It is further submitted that, the amount has been seized from the accused in presence of panchas and Ex.P-24 FSL report clearly indicates that 'the presence of phenolphthalein is detected in both the right and left hand finger washes of the accused when it was washed'. 8. It is further submitted that the Trial Court has failed to raise the presumption available under Sec. 20 of the Act. Therefore, the judgment and order of acquittal passed by the trial court is erroneous and not in accordance with law. As such, the learned counsel for the appellant prays to allow the appeal by considering the evidence of PW1, shadow witness-PW2 and PW-3-copanch witnesses along with the official witnesses. 9. Per contra, Sri Vijay K. Naik and Sri M.J. Peerjade, learned counsel for respondent justifying the judgment and order of acquittal of the Trial Court submits that, the prosecution has failed to prove the demand and acceptance of the illegal gratification by the accusedrespondent. 9. Per contra, Sri Vijay K. Naik and Sri M.J. Peerjade, learned counsel for respondent justifying the judgment and order of acquittal of the Trial Court submits that, the prosecution has failed to prove the demand and acceptance of the illegal gratification by the accusedrespondent. Therefore, the Trial Court has rightly acquitted the accused-respondent which requires no interference by this Court. 10. It is further submitted that there are some inconsistencies with regard to the amount given to the accused between co-panch and complainant and the accused has rebutted the presumption that the amount so stated to have received was the arrears of electricity charges which was to be paid by the complainant. Therefore, the Trial Court has rightly appreciated the evidence and acquitted the accused. With the above submissions, learned counsel for the respondent prays to dismiss the appeal. 11. After having heard the counsel for both the parties and after having perused the records, the points which arise for my consideration are : 1) Whether the judgment and order of acquittal passed by the trial Court is justified? 2) Whether the appellant has made out any grounds to interfere with the order of acquittal passed by the trial Court? 12. Before adverting to the facts, it is relevant to refer the evidence of each witnesses. PW-1 is the complainant, PW-2 is the shadow pancha, PW-3 is another pancha for recovery, PW-4 is the Engineer who has drawn the sketch, PW-5 was working as Assistant Executive Engineer, HESCOM, PW-6 is the sanctioning authority who accorded sanction to prosecute the case against the accused, PW-7 is the scribe of the complaint, PW-8 is the Investigating Officer. 13. In the instant case, evidence of PW-1 discloses that he was to pay the arrears of electricity charges to the HESCOM a sum of Rs.21,000.00, the accused being in-charge of recovery of the said amount, had asked PW-1 to pay the arrears. It is stated by the complainant that the bore well which he had dug for his land had a transformer connection, the transformer was out of order and he wanted to get it repaired through the HESCOM. Accordingly, he made a request to the authority to get it repaired. The work was entrusted to the accused by the superior officials to collect the arrears and get it rectified the transformer condition. Accordingly, he made a request to the authority to get it repaired. The work was entrusted to the accused by the superior officials to collect the arrears and get it rectified the transformer condition. It is stated by the complainantPW-1 that the accused had demanded a sum of Rs.6,000.00 to get the new transformer installed, the matter was settled between the accused and the complainant after negotiation for a sum of Rs.5,500.00. The complainant was not willing to pay the amount as bribe/illegal gratification. He has approached the Lokayukta Police and narrated the incident. The Lokayukta Police instructed him to act according to their directions and arranged a plan to conduct trap. 14. On careful reading of the entire record and evidence of all the witnesses, it is relevant to refer the evidence of PW-2, PW-3, PW-5 for discussion. PW-2 is the witness. He has stated that he was called to the Lokayukta Police and asked him to be as shadow witness to the trap mahazar. He was made to go along with the complainant to the office of the accused, when he along with complainant went to the office of the accused, the accused was not in his office when the enquiry having made, they were answered that within 15 minutes the accused would be back. By the time, they were waiting for his arrival. After 15 minutes, the accused came to his office and the complainant met him and had conversation regarding the exchange of transformer. By the time, the complainant called the accused and brought him to the power station gate, PW-2 also followed them, when the accused came out of the gate, the complainant paid the gratification amount. Accordingly, the accused counted the amount and kept in his pant pocket. 15. PW-3 is the hearsay witness according to him he came to know the said fact of receiving illegal gratification by the accused through PW-2. 16. PW-5 is the Assistant Executive Engineer. He stated that the accused was deputed to collect the electricity arrears and also to collect the revenue from the villagers etc. His evidence fortifies the statement of the accused. The accused had stated during the trap mahazar that the said amount of Rs.5,500.00 was received as a part payment of arrears payable to the HESCOM by PW-1. 17. He stated that the accused was deputed to collect the electricity arrears and also to collect the revenue from the villagers etc. His evidence fortifies the statement of the accused. The accused had stated during the trap mahazar that the said amount of Rs.5,500.00 was received as a part payment of arrears payable to the HESCOM by PW-1. 17. It is to be noticed that, PW-1 has stated that he went to the office of the accused along with shadow witness PW-2, the accused was standing near second gate of his office, there he went and paid the illegal gratification amount. However, PW-2 has stated that when himself and PW-1 went to the office of the accused, the accused was not there in his office. On enquiry, he was told that the accused would come within 15 minutes. Accordingly, accused came and PW-1 went and approached the accused and both were having conversation, by conversing each other, they reached the gate, where the complainant had paid the gratification amount to the accused. This creates doubt regarding demand and acceptance. It is also an admitted fact that the complainant was to pay the arrears of electricity bill and notice was given to him regarding the arrears. When the complainant had to pay the arrears of electricity bill and admitted by him, it would not be appropriate that the amount which he had paid, is on account of demand made by the accused as illegal gratification. The said contention of the complainant is unsustainable and the evidence of PW-2 and PW-3 regarding demand and acceptance do not survive for consideration. Therefore, the evidence of other witnesses namely, police officials and the FSL report loses its significance. Therefore, the judgment and order of acquittal passed by the Trial Court does not call for any interference. Hence, this Court declined to interfere to the reasons recorded by the Trial Court. 18. In view of the above observation, the points which arose for my consideration are answered as under: 1) Point No.1 in the affirmative 2) Point No.2 in the negative 19. Hence, I proceed to pass the following: ORDER The appeal filed by the appellant stands dismissed. The judgment and order of acquittal dtd. 7/6/2011 in Spl.Case No.173/2008 on the file of IV Addl. District and Sessions Judge (Spl. Judge) Belagavi, is confirmed.