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Karnataka High Court · body

2022 DIGILAW 904 (KAR)

GA Visiddappa v. State of Karnataka

2022-07-14

V.SRISHANANDA

body2022
JUDGMENT/ORDER 1. Convicted accused in Spl.Case No.32/2011 has preferred this appeal challenging the validity of the judgment of conviction and order of sentence dtd. 28/4/2016 on the file of Prl. District and Sessions Judge, Bagalkot. 2. Brief facts of the case are as under: One Yallappa Bheemappa Gaddi attempted to thieve the electricity connection by use of a hook to the electric wire on the pole installed in front of the house of Kaladagi village. Appellant/accused being the Sec. Officer of HESCOM, Kaladagi, conducted a raid and told the complainant that he would file a criminal case against him. At that juncture, complainant requested the accused not to file case against him. At that juncture, accused said to have demanded Rs.5000.00 as illegal gratification for not taking further action. Since there was a bargain for the illegal gratification, bribe amount was settled at Rs.3500.00. The conversation was recorded in the mobile telephone of the complainant and since complainant was not interested in parting away with the illegal gratification, he lodged a complaint with the Lokayuktha Police. 3. On receipt of the said complaint, the case came to be registered in Cr.No.2/2011 of Lokayuktha Police, Bagalkot for the offences punishable under Sec. under Ss. 7, 13 (1) (d) r/w Sec. 13 (2) of Prevention of Corruption Act on 18/2/2011. Thereafter, the Inspector of Lokayuktha convinced about the genuineness of the complaint averments, he arranged two independent government servants to act as pancha for the intended trap and took Rs.3500.00- from the custody of the complainant comprising of 7 notes of 500/- rupees denomination and smeared the phenolphthalein Powder on those notes after noting the serial numbers of the said notes on a paper. Thereafter, the notes were given to the hands of copancha to count the same. On such counting of the notes, the hand wash of the co-pancha was taken in a colour-less sodium carbonate solution which turned into pink colour and thereby the Inspector, Lokayuktha demonstrated the colour test to the panchas as well as the complainant. Thereafter, the complainant was instructed to visit the office of the accused, hand over the tainted currency to the hands of accused on demand and shadow witness was directed to be present with the complainant, when the complainant hands over the tainted currency on demand made by the accused. All these aspects were reduced into writing in the form of entrustment mahazar. All these aspects were reduced into writing in the form of entrustment mahazar. Thereafter, the raid party proceeded to the office of the accused around 6.30 p.m. The complainant and shadow witness as per the directions of the Investigating Officer went inside the office of the accused and handed over the tainted currency to the accused on demand and gave a pre-designated signal by showing right thumb up. Immediately, the rest of the raid party members came inside the office and enquired the accused about the tainted currency. The Investigating Agency was able to recover Rs.3500.00- from the custody of the accused which was kept in right side pocket of the pant worn by him. Colour test stood positive, accused was given a chance to explain as to why he handled the tainted currency for which accused replied vide Ex.P.5. The explanation given is shown that it was towards the arrears of the electricity charges. Thereafter, he was arrested and tainted currency was seized and trap mahazar was recorded. Further, the accused was produced before the Special Court and he was sent to judicial custody. 4. After thorough investigation, charge sheet came to be filed against the accused for the aforesaid offences. Presence of the accused was secured and thereafter charges were framed. Accused pleaded not guilty, therefore trial was held. 5. In order to prove the case of the prosecution 14 witnesses were examined as PWs.1 to 14 and 40 documents were relied upon by the prosecution which were exhibited and marked as Ex.P.1 to 40. Ten material objects also relied upon by the prosecution which were marked as MOs.1 to 10. 6. During the course of cross-examination of the prosecution witnesses, 3 documents were marked as Exs.D.1 to D.3 which are two office copy of the notice issued to the complainant and copy of the receipt. 7. Thereafter, the accused statement as contemplated under Sec. 313 Cr.P.c., was recorded. 8. Subsequently, accused has denied all the incriminating circumstances found in the case of the prosecution and offered written explanation which reads as under: 9. 7. Thereafter, the accused statement as contemplated under Sec. 313 Cr.P.c., was recorded. 8. Subsequently, accused has denied all the incriminating circumstances found in the case of the prosecution and offered written explanation which reads as under: 9. In the said written submissions, he has stated that as a routine work, when he had gone to inspection to the house of complainant, he noticed theft by inserting a hook to the over head electric line situated in front of his house and in that regard, complainant stated that he is required to initiate the criminal case. At that juncture, the alleged conversation took place. 10. Learned Sessions Judge after considering the oral and documentary evidence on record convicted the accused for the aforesaid offences and sentenced as under: "Acting under S.235(2) of Cr.P.C., the accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000.00 for the offence punishable under S.7 of the Prevention of Corruption Act, 1988 and in default to pay the fine amount, to undergo further simple imprisonment for a period of three months. Further, the accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000.00 for the offence punishable under S.13 (2) of the Prevention of Corruption Act, 1988 and in default to pay the fine amount, to undergo further simple imprisonment for a period of three months. Both the sentences shall run concurrently. The period of detention, if any, undergone by the accused is ordered to be set off against the term of imprisonment imposed on her. M.O.1 to 4 and 6 to 10 are ordered to be destroyed after expiry of appeal period. M.O.5 cash of Rs.3,500.00 is confiscated to the State after expiry of appeal period, as the equal amount has been paid to the complainant." 11. Being aggrieved by the same, the accused is before this appeal on the following grounds: * "The convictions and sentences are against law, the facts and circumstances of the case. * The court below has erred in convicting the appellant for offences u/s 7 and Sec.13(1)(d) punishable u/s 13(2)of P.C. Act 1988 by not taking into consideration the evidence on record. * The court below has erred in convicting the appellant for offences u/s 7 and Sec.13(1)(d) punishable u/s 13(2)of P.C. Act 1988 by not taking into consideration the evidence on record. * The court below ought to have held that the respondent has not established the ingredients of Sec.7 or Sec.13(1)(d) of the Act and acquitted him when the complainant and friend of his an independent witness turned hostile to the case of the respondent. It is further submitted that, the lower court has utterly failed to appreciate the evidence of PW-2 complainant who has categorically admitted that appellant has not demanded any illegal gratification from him. The PW-3 and PW-2 have categorically stated that, PW-1 was in Ganesh Temple when alleged transaction between appellant and PW-2 took place. The Ganesh temple is about 200 feet away from the alleged seen of occurrence. Therefore, PW-1 would not have had any conversation nor would have seen the alleged transaction. Even if the giving and taking of money is seen, seen is not a offence as appellant has admitted that, money was thirsted in his hand seeing that same is towards arrears of grandfather Shri. Saragappa Gaddy. The statement given U/s 313 CRPC has not been taken into consideration by the lower court. The evidence of PW-4 also shows that, appellant has not demanded any illegal gratification. The shadow witness PW-1 states that, PW 2 and PW-3 have not been enquired before him and both the hands of appellant is dipped in single bowl. These admissions clearly shows that, special Judge has not appreciated evidence of PW-1 in proper perspective, as such instead of rejecting the evidence of PW-1 unnecessary weightage is given to his evidence. For this ground alone impugned order is liable to be set aside. * It is submitted that, PW-1 in his statement before the police has stated that, the money was given to Appellant in front of the gate, however before the court says that the demand was made in front of the gate and thereafter money was given. Thus there is improvement in the evidence of PW-1. This material improvement will go to root of the case. The evidence of PW-1 should have been rejected. The lower court has failed to appreciate the fact that, grandfather of the appellant have to pay Rs.4,050.00 as arrears. The amount was given towards arrears of electricity charges. Thus there is improvement in the evidence of PW-1. This material improvement will go to root of the case. The evidence of PW-1 should have been rejected. The lower court has failed to appreciate the fact that, grandfather of the appellant have to pay Rs.4,050.00 as arrears. The amount was given towards arrears of electricity charges. This fact is proved not only by immediate explanation but also by the admission of PW 2. The statement U/S 313 CRPC also shows the same. Therefore, the amount given after the office hours towards the arrears of electricity charges cannot be banded as illegal gratification. The lower court has failed to appreciate these facts. The impugned order is liable to be rejected on this ground also. * The learned Trial judge failed to evaluate the evidence in the right perspective, and shifted the burden on the defense though the prosecution has failed to prove demand and acceptance of any bribe by the appellant. The evidence of the complainant PW-2 is of great importance in the present case and he has not supported the case of the prosecution and narrated the true circumstances/facts of the case in his Examination-in chief itself. The complainant has admitted that the complaint Ex.P-24 is not voluntary, hence the same does not bear any significance to the present case. By perusing the entire Evidence of PW-2 Complainant, one can say that the appellant has not demanded and accepted any illegal gratification from anybody much less from the Complainant at any point of time. But the Hon'ble Trial Judge misinterpreted the entire evidence of the complainant by rejecting the version of the complainant and considered irrelevant portion of his evidence without there being any logical end. In criminal jurisprudence the evidence of the witness has to be read as whole and not by part, but in the present case the Learned Trial Judge came to the wrong conclusion by the evidence of the complainant to deliberately suppress the defense theory though no incriminating evidence is given by the Complainant. The trial court without assigning plausible reason has confirmed that the PW-2 has set the law in to motion. It is well settled principle of law that no conviction can be given only on the basis of complaint without there being any solid corroboration. The trial court without assigning plausible reason has confirmed that the PW-2 has set the law in to motion. It is well settled principle of law that no conviction can be given only on the basis of complaint without there being any solid corroboration. Hence the reasoning given by the Learned Trial Judge on the evidence of the Complainant is beyond the scope of law and baseless, hence the same cannot be accepted. * It is submitted that the Evidence of the Pw1 Shadow Pancha cannot be believed from any angle, as the evidence of the PW-1 is self contradictory and does not corroborate with the evidence of PW-2 and PW-14 I.O and other witnesses. The evidence of the PW-1 is of unique importance as the story neither supports the prosecution or the records (Ex.p-3 Trap Panchanama). The version of PW-1 before the Trial Court is that the complainant alone went inside the house of the appellant and he observed what was transpiring inside the house of the appellant by standing near a window outside the house. Whereas the story of the prosecution is different from the version stated supra which has been clearly demonstrated before the Trial Court in Ex.D-1, D-2 and D-3. Learned Trial Judge ought to have disbelieved the evidence of PW-1, instead the learned Trial Judge with an illogical imagination wrongly construed that the version of PW-1 before the court and as stated in the evidence of PW-1 are same and corroborates with each other. On this important aspect, the Learned Trial Judge has not given satisfactory and convincing reasons to follow the same. * of case that mere recovery of money is not sufficient to prove the alleged charges. The work of the complainant was not pending with the appellant as on the date of the Trap. The competent authority to register a case is special squad and not PW-2. The explanation said to have been given by appellant in Ex-P5 is not a voluntary statement. * The main ground opted by the trial court to convict the appellant by negating the grounds raised by the defense before the trial court is without any substance. The Hon'ble Court never choose to find out whether the prosecution has proved its case beyond reasonable doubt, which is opposed to the legal principles laid down by the Apex court. * The main ground opted by the trial court to convict the appellant by negating the grounds raised by the defense before the trial court is without any substance. The Hon'ble Court never choose to find out whether the prosecution has proved its case beyond reasonable doubt, which is opposed to the legal principles laid down by the Apex court. * It is submitted that the voice recorded in CD MO.8 and 9 have not been sent for forensic Science laboratory for voice analysis test and the identification of the voice of the appellant by the witnesses is not proper, as no mixing of the voice of the accused with the voice of any other person has been made and in the absence of the expert opinion, the identification of the voice by PW-6 &7 in MO 8 and 9 as that of the appellant has little value and no reliance can be placed on the said evidence of PW6&7. Further, the entire evidence produced in voice recorder is hit by Sec. 65-A&B, since no Certificate as required under the above said provisions has been obtained and in absence of such certificate any electronic evidence produced cannot be relied. The learned Trial Judge failed to appreciate the legal provision and came to a wrong conclusion on surmises and conjecture. * The court below ought to have held that the respondent has failed to prove the application of mind by the sanctioning authority before according sanction. The sanctioning authority has utterly failed to prove perusal of all the documents namely trap punchanama, C.E. report, statement of witnesses, sketch, the immediate statement of accused etc., and should have held that the sanction is invalid in the eye of law. * The court below ought to have considered the evidence PW-2 and PW-3 and should have held that the respondent has failed to prove the demand of illegal gratification by appellant. * The court below ought not to have drawn the presumption u/s 20 of P.C.Act, 1988 since the evidence of PW-1 to PW-3 fails to prove demand of bribe by the appellant. * The contradiction in the evidence of PW-1, PW-2, and in the evidence of PW-14 has not been appreciated in proper prospective as such the impugned judgment of trial court is bad in law. * The contradiction in the evidence of PW-1, PW-2, and in the evidence of PW-14 has not been appreciated in proper prospective as such the impugned judgment of trial court is bad in law. * Whenever two views are possible the view favorable to the accused shall be taken into consideration, the court below would have accepted the same as palpable explanation and should have acquitted the appellant. * The court below ought to have extended the benefit of doubt in favour of the appellant since the independent material witnesses present at the time of incidents have not been examined or produced by the respondent. * The court below has totally failed to take into consideration that once the respondent fails to prove the demand of illegal gratification, the presumption cannot be drawn u/s 20 of P.C.Act, 1988 and only on the basis of recovery of amount no conviction can be sustained. The lower court ought to have acquitted the appellant. The lower court has totally failed to considered the cross examination of witnesses. Thus on the above said grounds the appellant is entitled to be acquitted. * The court below ought to have seen that the entire prosecution story bristle with inconsistencies, ambiguities, unnaturalness and unsustainability and acquitted the appellant. * The questionings u/s 313 Cr.P.C. are illegal in as much as the alleged incriminating materials pertaining to the charge are not put to the appellant seeking his explanation. The same has prejudiced his defense resulting in failure of justice. * It is submitted that, the appellant crave the permission of this Hon'ble Court to urge additional grounds at the time of hearing of this appeal." 12. Reiterating the grounds urged in the petition, Sri Shankar P Hegde, learned counsel for the appellant vehemently contended that accused has never demanded the money as illegal gratification from the complainant and as a retaliation attitude, a false complaint came to be filed by the complainant against the accused, as accused has detected the illegal trapping of electricity by the complainant. 13. He also contended that the money recovered by the Investigating Agency is received by the complainant towards the arrears of the electricity charges and therefore, sought for allowing the appeal. 14. 13. He also contended that the money recovered by the Investigating Agency is received by the complainant towards the arrears of the electricity charges and therefore, sought for allowing the appeal. 14. Per contra, Sri Santhosh Malagoudar, learned counsel for Lokayuktha vehemently contended that in the case on hand, complainant, shadow witness and friend of the complainant who is examined as PW.3 have supported the case of the prosecution in toto. So also co-pancha and other material evidence on record also supports the case of the prosecution and all the ingredients to attract the offence punishable under Ss. 7, 13 (1) (d) r/w sec. 13 (2) of the Prevention of Corruption Act has been established by the prosecution by placing cogent and convincing evidence on record and thus, sought for dismissal of the appeal. 15. He also contended that the case on hand, the explanation offered by the complainant is not acceptable inasmuch as if the amount is received towards the arrears of electricity, there was no necessity to keep the amount in the pant pocket and it should have been in the treasury box maintained in the office of the accused and therefore, the explanation per se is only to escape from the hands of law and thus, sought for dismissal of the appeal. 16. In view of the rival contentions of the parties, this Court has perused the material on record and following points would arise for consideration: 1) Whether the prosecution has successfully established all ingredients to attract the offence punishable under Ss. 7, 13(1) (d) r/w Sec. 13(2) of P.C. Act? 2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? 3) What order? 17. PW.1 is the shadow witness who supported the case of the prosecution by deposing the contents of experimental mahazar and draft mahazar. He specifically deposed about the demand made by the accused and handing over of the tainted currency by the complainant to the hands of the accused and giving pre-designated signal; raid party appearing on the scene of offence; arrest of the accused; colour test being conducted which turned into positive and recovery of the tainted currency from the pant pocket of the accused. 18. 18. In his cross-examination, it is elicited that "except asking for the money by the accused to the complainant telling that whether he has brought the money, no other conversation took place between them." 19. PW.2 is the complainant, who has not supported the case of the prosecution to any extent, except admitting his signature on the complaint. Though he has been treated as hostile witness and cross-examined in detail by confronting the contents of the complaint, entrustment mahazar and trap mahazar, no useful materials are elicited by the prosecution to establish the same. Friend of the complainant is PW.3. He also did not support the case of the prosecution. He has also treated as hostile witness and cross-examined by the prosecution. But in such cross-examination no useful material is elicited. 20. Laxman Talawar is the contractor examined on behalf of the prosecution as PW.4, has also not supported the case of the prosecution. Mahantesh Gadagooli is examined as PW.5, is the line man of the HESCOM. He also did not support the case of the prosecution. Shakunthala Tubagi is examined as PW.6. She is the computer operator in the HESCOM office. She deposed that she is acquainted with the accused and did not support the case of the prosecution further. Rajendra Lamani, Supervisor of HESCOM is examined as PW.7. He also did not support the case of the prosecution. 21. PW.8 - Muttappa Meti is the contractor who has drafted the spot sketch. His evidence is formal in nature. 22. PW.9 - Ashok Kattimani, Assistant Executive Engineer in HESCOM Department, who supplied the documents pertaining to the case to the head of the investigating Agency. His evidence is also formal in nature. 23. PW.10 is the police constable, he is the FIR carrier. His evidence is also formal in nature. 24. PW.11 is the police constable, who carried the seized articles to the Forensic Science Laboratory. His evidence is also formal in nature. 25. PW.12 is the sub staff who accompanied the head of the raid party and he supported the case of the prosecution. 26. PW.13 is the person who has issued the sanction order to prosecute the accused. 27. PW.14 is the head of the raid party. His evidence is also formal in nature. 25. PW.12 is the sub staff who accompanied the head of the raid party and he supported the case of the prosecution. 26. PW.13 is the person who has issued the sanction order to prosecute the accused. 27. PW.14 is the head of the raid party. He deposed before the Court about the gist of complaint; securing the panchas; demonstration of colour test; securing the currency notes; smearing the phenolphthalein powder; drafting entrustment mahazar; instructed the complainant and shadow witness to visit the office of the accused and hand over the tainted currency on demand; conduct actual trap; further investigation and filing charge sheet against the accused. In his cross-examination, he has denied that he has filed a false charge sheet against the accused. 28. The above evidence on record is sought to be re-appreciated by the learned counsel for the appellant for allowing the appeal. This court perused the material on record meticulously. 29. In order to bring home the guilt of the accused, who is alleged with the offences punishable under Sec. 7, 13 (1) (d) r/w Sec. 13 (2) of the Prevention of Corruption Act, 1988 prosecution is bound to establish the following ingredients as is held in the case of A. Subair Vs. State of Kerala reported in (2009) 6 SCC 587 . They are (1) demand and acceptance of the illegal gratification by the accused. (2) colour test being positive (3) work must be pending with the accused. 30. To prove the said aspect of the matter, prosecution relied on the evidence of shadow witness and the Investigating Officer alone. Inasmuch as the complainant has turned hostile to the case of the prosecution and co-pancha is not even examined on behalf of the prosecution. The other evidence available on record is the head constable who assisted the Investigation Officer at the time of trap. 31. Admittedly, complainant has not supported the case of the prosecution to any extent. Shadow witness has clearly stated that he did not hear the demand made by the accused, except asking the complainant that whether he has brought the money. The explanation offered by the accused is that the said money was received by him for the purpose of arrears of the electricity charge. 32. Shadow witness has clearly stated that he did not hear the demand made by the accused, except asking the complainant that whether he has brought the money. The explanation offered by the accused is that the said money was received by him for the purpose of arrears of the electricity charge. 32. Admittedly, the accused was the Sec. Officer, HESCOM who had the information that the complainant has made attempt to thieve the electricity by inserting a hook on to the over head of the electric line which was situated in front of his house. Complainant has turned hostile to the case of the prosecution and shadow witness has not specifically deposed about the demand made by the accused for the illegal gratification. Mere recovery of the tainted currency and colour test being positive itself would not be sufficient enough to conclude that the prosecution has established all ingredients to attract the aforesaid offences. 33. Further, in respect of the case pending also there is no proper evidence on record. Inasmuch as the Investigating Agency is unable to say that infact case was registered and for the purpose of showing favour to the complainant by misusing the official position of the accused, there was a demand in a sum of Rs.5000.00 which subsequently reduced to Rs.3500.00-. In the absence of such cogent evidence placed on record, only on the basis of surmises and conjunctures, conviction order cannot be passed against the accused for the offences alleged against him. 34. Further, it is a settled principle of law that the prosecution has to travel a long distance between "may be proved" or "actual proof". Further, in a given case, if there is a doubt occurred in the case of the prosecution, such doubt should always enure to the benefit of the accused. It is also one of the celebrated legal principles in the criminal jurisprudence, that if two views are permissible in a given case, the view which favours the accused must be preferred. Further, in a given case, if there is a doubt occurred in the case of the prosecution, such doubt should always enure to the benefit of the accused. It is also one of the celebrated legal principles in the criminal jurisprudence, that if two views are permissible in a given case, the view which favours the accused must be preferred. Applying these aspects of the matter in the light of the materials available on record, this Court is of the considered opinion that in the absence of cogent and convincing evidence placed by the prosecution to prove the actual demand of the illegal gratification and acceptance thereof, this court is of the considered opinion that the impugned judgment passed by the Trial Court convicting the accused cannot be construed as illegal in the eye of law. Accordingly, point No.1 is answered in the Negative. Consequently, point No.2 is answered in the affirmative. 35. Regarding Point No.3: In view of this court finding on point Nos.1 and 2, following order is passed. ORDER Appeal is allowed. The impugned judgment dtd. 28/4/2016 passed by the Principal District and Sessions Judge, Bagalkot in Spl.C.No.32/2011 is hereby set aside. Fine amount in deposit is ordered to be returned to the accused under due identification. Bail bond stands discharged. Trial Court records shall be returned forthwith, along with a copy of this order.