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2022 DIGILAW 746 (KAR)

Shivanand Fakirappa v. State of Karnataka

2022-06-15

V.SRISHANANDA

body2022
JUDGMENT/ORDER 1. Heard Sri.Shankar P Hegde, learned counsel for the appellant and Sri.G.I.Gachchinamath, learned Special Public Prosecutor for respondent-State. 2. Appeal by the convicted accused in Special C.C. No.82/2010, whereby accused has been convicted for offence punishable under Ss. 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 and sentenced as under: "The accused is found guilty of the offences U/s 7 and 13(1)(d) r/w Sec. 13(2) of Prevention of Corruption Act, 1988 and he is convicted U/s 235(2) of Cr.P.C. The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5, 000.00, in default simple imprisonment for a further period of two months for the offence punishable U/s 7 of the Prevention of Corruption Act, 1988. The accused is further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.5, 000.00, in default simple imprisonment for a further period of three months for the offence punishable U/s 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988. Both the sentences shall run concurrently." 3. Brief facts of the case are as under: Anand Fakirappa Hobannavar lodged a complaint with Lokayukta Police, Belagavi on 19/2/2009 stating that he is working as Mechanic in NWKRTC, Rural Unit, Belagavi since 1997 and there are 65 mechanics in the said unit. There is a supervisory personnel designated as chargeman to supervise the works of the complainant and others and there is a superior official above him as Depot Manager. Day to day activities involve repair of vehicles and also timely servicing of the buses of NWKRTC and the job work will be given, assigned and managed by the chargeman. The complainant was required to adhere to the oral orders of the chargeman. The chargeman is also the person who is authorized to grant leave for the mechanics and such other job related issues. 3.1 It is further contended in the complaint that every leave application to be processed, the chargeman used to take Rs.200.00 as illegal gratification and if the same is met, the leave application would be processed hassle-free. If the demand is not fulfilled, the applications would not be processed and leave would be rejected. 3.1 It is further contended in the complaint that every leave application to be processed, the chargeman used to take Rs.200.00 as illegal gratification and if the same is met, the leave application would be processed hassle-free. If the demand is not fulfilled, the applications would not be processed and leave would be rejected. As such, when the complainant was in need of leave on 22/2/2009 he approached the accused with a leave application and accused as usual demanded Rs.200.00 for processing the application which he paid and got leave sanctioned. Further, the accused also demanded arrears of Rs.2, 400.00 which was to be paid by the complainant for grant of leave for earlier period, for which the complainant requested small accommodation for payment of the same. As the complainant was not interested in parting away with the illegal gratification in a sum of Rs.2, 400.00, he approached the Lokayukta police and lodged a written complaint. 3.2 The Lokayukta Inspector on receipt of the written complaint, got convinced about the genuineness of the contents of the complaint and arranged for intended trap. He secured two Government officials as witnesses for the intended trap and explained them about the contents of the complaint and also demonstrated chemical reaction of phenophthalein powder with sodium-carbonate solution and took Rs.2, 400.00 from the custody of the complainant comprising one note of Rs.1, 000.00 denomination, one note of Rs.500.00 denomination and seven notes of Rs.100.00 denomination and noted the serial numbers of those notes and drafted experimental mahazar. Thereafter, instructions were given for the complainant and shadow witness to visit the accused and on demand to hand over the tainted currency to his hands and give a pre- designated signal by wiping his face with handkerchief. Accordingly, the raid party went to the workplace of the accused on 20/2/2009. However, trap was unsuccessful for want of presence of accused on that date. Accordingly, the tainted currency was taken back by the head of the investigation agency and kept with him and instructions were given to the complainant to find out the presence of the accused so as to trap him. Later on, the complainant enquired from the office and came to know that accused has applied leave up to 24/2/2009 and accordingly he intimated the same to the head of the raid party. Later on, the complainant enquired from the office and came to know that accused has applied leave up to 24/2/2009 and accordingly he intimated the same to the head of the raid party. In turn the head of the raid party told the complainant that soon after the accused assumes office, the same should be intimated to the head of the raid party and the trap would be arranged. 3.3 When the matter stood thus, on 28/2/2009, after finishing the office hours the complainant went on two wheeler and intimated the head of the raid party that the accused is very much available in the office. Accordingly, head of the raid party secured panchas and all the members went to the workplace of the accused. The complainant and shadow witness went inside the workplace and on demand the complainant handed over the tainted currency to the hands of the accused and immediately he gave pre-designated signal to the rest of the raid party. In the interregnum, a mechanic came and took the accused from his cabin to the workplace and the raid party went to the place where the accused had gone and from there they held the hands of the accused and came back to the cabin and enquired the accused. At that juncture, accused took out the tainted currency from his shirt pocket and the same was seized by the raid party and since serial numbers of the notes were tallied, the tainted currency was seized. Further, colour test was conducted and colour test stood positive and therefore, explanation of the accused was sought for. The explanation offered by the accused was incorrect. Therefore, accused was arrested and trap mahazar was drafted. Thereafter, the accused was produced before the Special Court. After thorough investigation, charge sheet came to be filed against the accused. 3.4 The learned Special Judge took cognizance of the aforesaid offence and issued process to the accused and presence of the accused was secured. Charges were framed and accused denied the charges. Accordingly, trial was held. 3.5 In order to prove the case of prosecution, in all examined 8 witnesses as PWs.1 to 8 comprising of complainant, shadow witness, co-panch, sanctioning authority and depot manager. Prosecution relied on 31 documents which were exhibited and marked as Exs.P.1 to P.31. On behalf of accused two documents were marked as Exs.R.1 and R2. Accordingly, trial was held. 3.5 In order to prove the case of prosecution, in all examined 8 witnesses as PWs.1 to 8 comprising of complainant, shadow witness, co-panch, sanctioning authority and depot manager. Prosecution relied on 31 documents which were exhibited and marked as Exs.P.1 to P.31. On behalf of accused two documents were marked as Exs.R.1 and R2. Nine material objects were also relied on by the prosecution which were marked as Mos.1 to 9. 3.6 On conclusion of the prosecution evidence, accused statement as contemplated under Sec. 313 of Cr.P.C. was recorded, wherein accused denied all the incriminatory circumstances that were put to him and has furnished written submissions as contemplated under Sec. 313(5) of, which reads as under: 3.7 Thereafter, the learned trial Judge heard the parties in detail and by impugned judgement, convicted the accused and sentenced him as referred to supra. 4. Being aggrieved by the same, accused preferred the present appeal on the following grounds: 1. The order of conviction and sentence passed by the learned Special Judge Belgaum is against law, fact and evidence on record. 2. That the Trail Court has not properly appreciated the evidence while passing the order of conviction though there are material contradiction and omission, therefore the impugned order deserves to be set aside. 3. That the Trail court failed to note that, the appellate is not the person having power to sanction the leave but only to recommend and for that he was demanding Rs.200.00 per month and that since 1 year the said amount not paid and for that reason he was demanding illegal gratification is highly improbable and not worth to be believed, hence the impugned order deserves to be set aside. 4. That the Trial court failed to note that, the complainant has admitted that during the service of appellant he has taken leave on every month and that each time for the demand of bribe the complainant has postponed stating that he will pay the bribe is also not worth to be believed. 5. 4. That the Trial court failed to note that, the complainant has admitted that during the service of appellant he has taken leave on every month and that each time for the demand of bribe the complainant has postponed stating that he will pay the bribe is also not worth to be believed. 5. That the Trial Court is not correct in contending that the appellant demanded Rs.200.00 on 12/2/2009 for recommending the leave application and also arrears of Rs.2, 200.00 for one year and on that day the complainant paid Rs.200.00 advance and requested time to pay Rs.2, 200.00 after 8 days is a false and baseless allegation only to involve and harass the appellant. 6. That the Trial court failed to note that, the appellant was demanding Rs.200.00 P. M from each of the mechanics and in all there were 65 employees working in the said depot, therefore in absence of any independent evidence the story alleged is not worth to be believed. 7. That the Trail court has relied only on the evidence of prosecution witnesses whatever stated in the examination in chief and failed to look into the admissions in cross examination, therefore the order under appeal is not in accordance with law and liable to be set aside. 8. That the Trial court has committed an error in presuming that the evidence of complainant is the real truth in absence of cogent and reliable evidence to prove the guilt against the appellant, hence the impugned order is bad under law. 9. That the Trail court has not looked into the evidence which is in favour of the appellant while appreciating the evidence that the complainant has stated that, the amount after entrustment panchanama was given in a cover clearly contradict the entire story, therefore the order prima facie one sided and not worth to be believed. 10.That the trial court failed to see that PW.2 complainant has stated in examination in chief that he has signed all the documents on 29/2/2009 i.e., trap panchanama and other documents therefore the story alleged by the prosecution that after trap on 28/2/2009 the panchanama prepared on the spot and signatures were obtained appears to be false and hence the entire case is doubtful and the said benefit must go the appellant. 11.That the Trial court failed in relying on the evidence of Pancha witnesses the same is not materially corroborated the evidence of complainant therefore in absence of any reliable evidence the evidence of complaint being a accomplice is not worth to be believed . 12.That the Trial court failed to appreciate the fact that on the recommendation of appellant for action for negligence the complainant has been imposed fine as per ExD-1 and D-2 and also the appellant has issued memo to several employees as per ExP11 and also the appellant has paid fine as the work in the Sec. was not properly carried out, if these facts are seen it is clear that the complainant with a grudge has filed a false case, hence the appeal is liable to be allowed. 13. That the Trial court is not correct in relying on the evidence of complainant PW-2 and Panchas PW-3 and 4, their evidence is interested since the panchas are Government Servants and they are not independent therefore the basis on which the conviction is passed is illegal and perverse. 14. That the trial Court failed to appreciate the evidence of PW.5 mechanic and also PW.6 depot manager who were present at the time of trap proceedings and they have stated that at any time the appellant has not demanded bribe from the complainant therefore the conclusion arrived by the learned judge is not worth to be believed. 15. That the Trail court has not made mention about the admission in the cross examination which are very much material to disprove the case of prosecution on this count also the order under appeal is arbitrary and one sided. 16. That the Trail court failed to appreciate the fact that on the date of trap the amount which was with the Lokayukta Inspector is not handed over to the complainant before he proceed inside the depot to approach the appellant and the said fact is not mentioned in Trap Panchanama EXP-12 and the same is admitted by the Investigation Officer. If the said circumstance is appreciated it will falsify the allegation made by the complainant hence the order is bad and liable to be interfered. 17. If the said circumstance is appreciated it will falsify the allegation made by the complainant hence the order is bad and liable to be interfered. 17. That the Trail court failed to note that, there is a variation in the timing and also the place where the pancha No.1 was standing and also the place from when the signal is made the said circumstances will also create doubt the veracity of the story hence the appeal deserves to be allowed. 18.The Trail court has not given proper reasonings given while passing the order of conviction and the reasonings given are without proper application of judicial mind hence the appellant is entitle for the benefit and deserves to be acquitted. 19.That the trial Court ought to have taken in to consideration the over all circumstances and should have find out that where liese the truth, therefore in absence of such evidence the order under appeal is not in accordance with law. 5. On behalf of the appellants, learned counsel Sri.Shankar P Hegde vehemently contended that the prosecution has utterly failed to prove all ingredients to attract the offences alleged against the accused. He also pointed out that the material evidence on record is hardly sufficient to accept the case of the prosecution inasmuch as the contradictions found in the examination-in-chief and cross-examination of the witnesses, there is no demand at all and there is no work pending with the accused for accepting illegal gratification and mere handling of the currency notes and the colour test stood positive itself would not be sufficient to record an order of conviction and thus, sought for allowing the appeal. 6. Alternatively, he also submitted that since the accused is retired and he is not interested in taking the outcome of the present appeal, this Court may consider the case of the accused sympathetically and record an order of acquittal taking note of the deficiency in the case of the prosecution so as to maintain his dignity in the society in the rest of life and in this regard he has filed a memo which reads as under: "Herein the advocate for accused submits as follows: 1. That the appellant herein submits that he will not be taking/claiming back wages or arrears from the date of dismissal till the date of decision of this case at any time in future also. That the appellant herein submits that he will not be taking/claiming back wages or arrears from the date of dismissal till the date of decision of this case at any time in future also. The memo may kindly be placed on record in the interest of justice and equity." 7. In support of his arguments, he has relied on the following judgments: 1. (2009) 6 SCC 587 A Subair vs. State of Kerala 2. 2008 (2) KCCR 985 State vs. K.M.Gangadhar 3. 2004 (2) KCCR 1233 D.Rajendran vs. State 8. Per contra, learned Special Public Prosecutor for Lokayukta, Sri.G.I.Gachchinamath vehemently contended that the prosecution is successful in establishing all ingredients to attract the aforesaid offences inasmuch as the complainant, shadow witness, depot manager have also supported the case of the prosecution and admittedly the relationship of the chargeman and the accused being mechanic is established by placing necessary oral and documentary evidence on record and therefore, the impugned judgement needs to be maintained. 9. He also contended that the memo filed by the learned counsel for the appellant cannot be considered inasmuch as the ingredients to attract the alleged offence has been established. On the ground of mercy the appellant cannot be granted the benefit of an order of acquittal and thus, sought for dismissal of the appeal in toto. 10. In view of the rival contentions of the parties, the following points would arise for consideration: 1. Whether the prosecution is successful in establishing all the ingredients to attract the offences under Ss. 7 and 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act? 2. Whether the impugned judgement of conviction and sentence is suffering from legal infirmity or perversity and thus calls for interference? 3. What order? 11. In the case on hand, in order to establish the case of the prosecution eight witnesses have been examined, among them PW.2 is the complainant. He supported the case of the prosecution in toto by deposing before the Court as per the contents of the complaint averments, experimental mahazar and trap mahazar. 3. What order? 11. In the case on hand, in order to establish the case of the prosecution eight witnesses have been examined, among them PW.2 is the complainant. He supported the case of the prosecution in toto by deposing before the Court as per the contents of the complaint averments, experimental mahazar and trap mahazar. It is the specific case that the accused being the chargeman was interested in taking Rs.200.00 for every leave application as illegal gratification and however if the same is not paid favourable orders would not be passed and on 11/2/2009 the complainant has handed over Rs.200.00 and got leave sanctioned and he had promised to pay Rs.2, 400.00 for applications which have been processed earlier and since he was not interested in parting away with Rs.2, 400.00 as illegal gratification he had approached Lokayukta and the trap has been laid. 12. In his cross-examination however, he has admitted that shadow witness was standing outside the cabin and he alone went inside the cabin and handed over the tainted currency to the accused. 13. In his examination-in-chief itself he has stated that on 28/2/2009 after finishing his work at about 4.00 p.m. he went to the office of Lokayukta regarding the intimation. He had assured the accused that he would pay a sum of Rs.2, 400.00 at the end of the working hours. He admits in his cross-examination that on 18/2/2009 he had completed his work and at about 3.30 p.m. he attended the work and completed his work up to 3.30 p.m. and though he had intended to give complaint on 18/2/2009 itself, he did not give complaint on 18/2/2009 and lodged the complaint on 19/2/2009 at about 3.30 p.m. So also, it is elicited that on the date of trap i.e. on 28/2/2009, the accused had not demanded illegal gratification from the complainant. 14. Shadow witness is examined as PW.3. He has supported the case of the prosecution by deposing in line with PW.2 with regard to experimental mahazar and trap mahazar. 14. Shadow witness is examined as PW.3. He has supported the case of the prosecution by deposing in line with PW.2 with regard to experimental mahazar and trap mahazar. In his cross-examination he admits that he had gone to the office of Lokayukta based on the official superiors instructions at about 3.00 p.m. and they were there in the office in the office of the Lokayukta up to 4.15 p.m. He admits that he was standing outside the cabin of the accused and he has not heard any conversation as to the accused was demanding illegal gratification soon before the trap. 15. Co-panch supported the case of the prosecution so also, the head of the raid party. Depot manager has also supported the case of the prosecution insofar as the work that has been assigned to the accused and the procedure for processing the leave application. Another co- worker of the accused by name Saftar Ali Maniyur Abdul Hamid Maniyur who is examined as PW.5 has also supported the case of the prosecution. 16. The documentary evidence on record in the form of experimental mahazar, trap mahazar and complaint would also support the case of the prosecution in establishing the fact of colour test stood positive. 17. The above evidence on record is sought to be reappreciated by the learned counsel for the appellant. 18. On reappreciation of the entire material evidence on record, it is seen that on 12/2/2009 to obtain leave, the accused has already paid a sum of Rs.200.00 to the hands of the accused and got his leave sanctioned. A sum of Rs.2, 400.00 is demanded by the accused represents twelve previous leave applications at the rate of Rs.200.00 per application. Admittedly, the demand has taken place soon after the accused assumed back to the work on 13/2/2009 or 14/2/2009. There is no specific date that is mentioned by the complainant as to the said aspect of the matter. Nevertheless, as could be seen from the totality of the material on record, the amount of Rs.2, 400.00 was in respect of previous leave applications which have been processed by the accused and with an assurance of illegal gratification at the rate of Rs.200.00 would be paid by the complainant to the accused little later. 19. Nevertheless, as could be seen from the totality of the material on record, the amount of Rs.2, 400.00 was in respect of previous leave applications which have been processed by the accused and with an assurance of illegal gratification at the rate of Rs.200.00 would be paid by the complainant to the accused little later. 19. It is elicited in the cross-examination of the complainant that though the accused had demanded Rs.2, 400.00 on 18/2/2009, he did not choose to lodge complaint on the same day for no reason whatsoever. However, he decided to lodge the complaint only on 19/2/2009. Trap was arranged on 20/2/2009. the same was unsuccessful for want of presence of accused. Accordingly, the trap was postponed. There was a specific instruction given by the head of the raid party to the complainant that the moment, the accused assumes to duty after completing his leave period, the same should be intimated to the raid party so as to trap the accused. But the information was given only on 28/2/2009 by the complainant to the head of the raid party. In the examination-in-chief itself, PW.2 has stated that after finishing his work around 4.00 p.m. he has gone and intimated that the accused has assumed to duty and the trap could be arranged. However, in the cross-examination of PW.3 who is shadow witness, it is elicited that he was present in the Lokayukta office at 3.00 p.m. on 28/2/2009 at the instance of official superior of PW.3. It is also elicited that PW.3 stayed along with co-panch in the office of the Lokayukta up to 4.15 p.m. If the complainant has gone to the Lokayukta office at 4.00 p.m. after finishing his work, how could the head of the raid party come to know about the accused is to be trapped on 28/2/2022 at 3.00 p.m. itself so as to secure the presence of panch witness at 3.00 p.m., is a question that remains unanswered. However, it is also elicited that PW.3 did not hear the actual demand from the accused as on the date of the incident inasmuch as he was standing outside the cabin even when the rest of the raid party members came to the cabin of the accused, the accused was not found there in view of the fact that one of the mechanic came and took him to the workplace. It is found from the trap mahazar itself that accused secured from the workplace and thereafter the accused was brought to cabin by holding his hands. 20. Viewed from any angle, there is no material on record to conclusively establish that on 28/2/2009 the accused demanded illegal gratification on such demand the complainant handed over Rs.2, 400.00 to the accused. However, the colour test stood positive which presupposes that the accused had handled the tainted currency. It is now settled principles of law that mere handling the tainted currency alone would not be sufficient to record an order of conviction for the offence under Sec. 13(1)(d) of Prevention of Corruption Act. 21. As per the dictum of the Hon'ble Apex Court in the case of A.Subair v. State of Kerala reported in (2009) 6 Supreme Court Cases 587, the prosecution has to establish all ingredients go attract the aforesaid offence, namely demand and acceptance of illegal gratification, colour test itself being positive and the work must be pending. In the case on hand, the demand is not properly established by the prosecution. Further, colour test stood positive but that itself would not be sufficient and the Court has to look into whether the work of the complainant is pending concerned. 22. It is crystal clear from the complaint averments that an amount of Rs.2, 400.00 was demanded by the accused for 12 leave applications earlier to 12/2/2009, but what prompted the complainant to postpone the payment of illegal gratification till 12/2/2009, is a question that remains unanswered. What prevented the complainant to approach the Lokayukta on the first occasion or on subsequent 11 occasions when the accused demanded illegal gratification, is also a question that remains unanswered. Further, it is a specific case of the prosecution that on 12/2/2009 illegal gratification of Rs.200.00 was paid and got leave sanctioned. Under such circumstances, pending work of the complainant with the accused itself is not properly established by the prosecution by placing cogent and convincing evidence on record. Ex.P.16 in this regard is also appreciable and significant. PW.6-depot manager also admitted the said aspect of the matter. 23. Further, Exs.R.1 and R.2 are also of some importance in appreciating why such a complaint came to be filed by PW.2 against the accused. Ex.P.16 in this regard is also appreciable and significant. PW.6-depot manager also admitted the said aspect of the matter. 23. Further, Exs.R.1 and R.2 are also of some importance in appreciating why such a complaint came to be filed by PW.2 against the accused. The contents of Exs.R.1 and R.2 clearly establish that on account of previous incident, whereby complainant was fined for his misdeeds at the instance of accused, the possibility of complainant filing the complaint against the accused cannot be ruled out. 24. Taking note of all these aspects of the matter, especially in the light of the contents of the memo referred to supra, wherein the accused has pleaded that what happened had happened and he will not be interested in claiming any further benefits on the outcome of the present appeal. Hence, this Court is of the considered opinion that having regard to the peculiar facts and circumstances of the case, the conviction of the appellant in the impugned judgement needs to be set aside. Hence, point No.1 is answered in Negative. Consequently, point No.2 is answered in Affirmative. 25. As regards point No.3 is concerned, this Court pass the following order is passed: ORDER The appeal is allowed. Impugned judgement of conviction and order of sentence dtd. 12/1/2012 passed in Special C.C. No.82/2010 is hereby set aside. Bail bond, if any, stands discharged. Fine amount deposited, if any, is ordered to be refunded to the appellant under due identification. It is made clear that by allowing the present appeal in view of the memo filed by the appellant, the appellant shall not have the benefit of claiming arrears of salary, back wages, if any, from the date of dismissal till this date. However, this will not come in the way of appellant being reinstated notionally for the remaining period of service and claiming the benefits likewise, gratuity, provident fund and other statutory benefits.