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2023 DIGILAW 302 (KAR)

Prakash Balappa Naik v. State of Karnataka

2023-02-21

RAJENDRA BADAMIKAR

body2023
JUDGMENT/ORDER 1. This is an appeal is filed by the appellant/accused challenging the judgment of conviction and order of sentence passed by the learned District and Sessions Judge, Bagalkot in Special Case No.38/2010 dtd. 12/11/2013, whereby the learned Sessions Judge has convicted the accused for the offences punishable under Ss. 7 and 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 (for short, hereinafter referred to as 'P.C. Act') and sentenced him for imprisonment with fine. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial court. 3. The brief factual matrix leading to the case are that the accused is a Village Accountant and a public servant. The complainant had purchased 2.01 acres of land in Rs. No.98/3 of Bandakeri Village and he has applied for mutating his name in RTC. It is also alleged that when the complainant has approached the accused in this regard, the accused has demanded illegal gratification of Rs.2, 000.00 and Rs.1, 000.00 was paid in advance and the balance of Rs.1, 000.00 was demanded by the accused. The complainant being reluctant to pay the bribe went to the Lokayukta office and lodged a complaint before the Lokayukta as per Ex.P.27 on 9/4/2009 at about 1.00 p.m. The investigating officer has registered the complaint and then he secured two witnesses and drawn an entrustment mahazar, as per Ex.P1 in presence of the panchas after production of the amount to be paid as a bribe by the complainant. It is also alleged that then the trap was laid down. The complainant along with the shadow witness approached the accused in the canteen of K.S.R.T.C. Bus Stand, Kerur around 4.00 p.m. and there when the complainant enquired with the accused regarding his work of mutating the name, it is alleged that the accused has demanded and accepted illegal gratification of Rs.1, 000.00. He was trapped at that time and his hand wash was taken and the bribe amount was also recovered from his custody. The shirt pocket of the accused was also taken, which has also tested positive and then a trap Mahazar was also drawn. He was trapped at that time and his hand wash was taken and the bribe amount was also recovered from his custody. The shirt pocket of the accused was also taken, which has also tested positive and then a trap Mahazar was also drawn. The accused was asked to give his explanation and it is also alleged that the accused has also given an explanation as per Ex.P.26 wherein he claimed that there was no work pending with him and he attended the work of complainant on 6/4/2009 itself and he never demanded and accepted illegal gratification. His statement also discloses that the complainant has offered Rs.1, 000.00 but he never demanded it. Then the accused was arrested by the investigating officer and he has also drawn a trap Mahazar as per Ex.P.2. The photographs were also taken while drawing the trap mahazar and then the investigating officer has also recorded the statement of material witnesses. Subsequently, after obtaining sanction, the investigating officer submitted the charge sheet against the accused. 4. After submission of the charge sheet as there are sufficient grounds to proceed against the accused, the cognizance of alleged offences were taken by the learned Special Judge. Meanwhile, the accused was enlarged on bail and he was also provided with the prosecution papers. He denied the charge alleged against him. 5. To prove the guilt of the accused, the prosecution has examined in all 18 witnesses and also placed reliance on 47 documents and 9 material objections. After conclusion of the evidence of the prosecution, the statement of accused under Sec. 313 Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial and he has submitted his written statement wherein he denied the demand and acceptance of bribe. 6. Then after hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Special Judge found that the prosecution has proved the guilt of the accused beyond all reasonable doubt and thereby convicted him and imposed sentence of 3 and 1/2 years with a fine of Rs.10, 000.00 for each offences under Ss. 7 and 13 (1) (d) read with Sec. 13(2) of the P.C. Act. He has also directed that both the sentences shall run concurrently. 7. 7 and 13 (1) (d) read with Sec. 13(2) of the P.C. Act. He has also directed that both the sentences shall run concurrently. 7. Being aggrieved by this judgment of conviction, the accused has filed this appeal. 8. Heard the learned counsel for the appellant and learned Special Public Prosecutor appearing for the respondent/State/Lokayukta. Perused the records. 9. The learned counsel for the appellant would contend that the impugned judgment is contrary to law and facts of the case. He would also contend that it is perverse, arbitrary and capricious. He would also invite the attention of the Court that complainant himself has turned hostile and the evidence of shadow witnesses is not corroborated and the demand and acceptance are not at all proved. He would further assert that the material witnesses of PWs.3, 4, 5, 6, 7 and 12 have turned hostile and there is no evidence to show that the work was pending with accused and the records discloses that the accused had completed the work on 6/4/2019 itself and when there was no work pending, question of demanding the bribe does not arise at all. He also submits that work was attended on 6/4/2009 itself and subsequently as on that date of trap no work was pending. Hence, he would contend that in the absence of the material corroboration to the evidence of shadow witnesses and in the absence of proof of demand and acceptance, the Trial Court erred in convicting the accused. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence by acquitting the accused. 10. Per contra, the learned Special Public Prosecutor would contend that PW.1 is the shadow witness and he has fully supported the case of the prosecution which is again corroborated by the evidence of PW.17. He would also contend that though the complainant has turned hostile, the cross examination of complainant by the prosecution establishes that he has admitted the material aspects and that cannot be ignored. He would also contend that the evidence of Tahasildar clearly establishes that work was pending and mutation was not prepared by the accused. He would contend that since the amount was recovered from the custody of the accused, there is presumption under Sec. 20 of the P.C. Act against the accused and he has failed to rebut the said presumption. He would also contend that the evidence of Tahasildar clearly establishes that work was pending and mutation was not prepared by the accused. He would contend that since the amount was recovered from the custody of the accused, there is presumption under Sec. 20 of the P.C. Act against the accused and he has failed to rebut the said presumption. Hence, he would contend that the prosecution is successful in establishing the guilt of the accused and as such the judgment of conviction and order of sentence does not call for any interference by this Court. 11. Having heard the arguments and perusing the records, now the following point would arise for by consideration: a) Whether the judgment of conviction and order of sentence passed by the learned Special Judge is erroneous, arbitrary and capricious so as to call for any interference by this Court? 12. PW.1 is the shadow witness in the instance case. He has deposed that on 9/4/2009 he was being summoned to Lokayukta office wherein complainant was present and an entrustment mahazar was being drawn wherein the complainant has produced two notes of Rs.500.00 denomination pertaining to payment of Rs.1, 000.00 as a gratification and drawing of entrustment mahazar. He has also deposed that subsequently, he and complainant went to Kerur and in the bus stand canteen, the accused demanded and accepted illegal gratification. He has also specifically deposed regarding trap mahazar being drawn and this witness was cross examined at length but nothing was elicited so as to impeach his evidence. His evidence was not shaken in the cross examination. 13. PW.2 is the complainant and he has partly turned hostile. The main argument of defence is that the complainant has turned hostile. But mere hostility of the complainant cannot discard his entire evidence. It is now settled law that the admissible portion of the evidence hostile witness can be relied by the prosecution. Further on perusal of the statement given by the accused immediate to trap, it is evident that the complainant and accused are relatives. Hence, possibility of complainant being won-over by the accused cannot be ruled out and the Trial Court has rightly observed the diminishing value of morality in these days as hostility in criminal cases has become a common feature. 14. Hence, possibility of complainant being won-over by the accused cannot be ruled out and the Trial Court has rightly observed the diminishing value of morality in these days as hostility in criminal cases has become a common feature. 14. However, the cross examination of PW.2 reveals that he has admitted that he did appear before the Lokayukta Inspector regarding mutating his name. He has also admitted that the complaint/Ex.P.27 bears his signature and he also admits that in a normal course, he affixes his signature if he found the contents to be true and correct. It is not his contention that his signature was obtained by force and what is the reason for the Lokayukta Officials to take interest in favour of complainant is not at all forthcoming. Even PW.2 in his cross examination admitted that he has affixed his signature on entrustment mahazar and he further admitted that the inspector asked him to approach the accused for his work and he was directed that only in case of demand, he is required to give the currency notes kept in his left shirt pocket. He has also admitted that he was going to Kerur bus stand in the police jeep. He also admitted taking hand wash and drawing a trap mahazar as per Ex.P.2 and he affixing his signature. Though he admits entire case of the prosecution, he only denied the demand and acceptance by the accused. His cross examination by the defence counsel also clarifies that he has subsequently received Rs.1, 000.00 from Lokayukta through cheque. Hence, a suggestion was made, that Lokayukta have taken the hand wash of the accused, after accused counted the notes and gave it to the police inspector. But this evidence is contrary to evidence of PW.1 and during the cross examination of PW.1, no such specific suggestion was forthcoming that first the amount was recovered and then hand wash was taken. The evidence of PWs.1 and 2 again is corroborated by the photographs. Further this is again required to be read along with the statement given by the accused as per Ex.P.26. Though PW.2 has turned hostile, his cross examination by the prosecution clearly establish that he indirectly supported the case of the prosecution and corroborates the evidence of PW.1, who is a shadow witness. 15. Further this is again required to be read along with the statement given by the accused as per Ex.P.26. Though PW.2 has turned hostile, his cross examination by the prosecution clearly establish that he indirectly supported the case of the prosecution and corroborates the evidence of PW.1, who is a shadow witness. 15. Much arguments have been advanced that work was completed 3 days prior to trap itself i.e., on 9/4/2009. In this regard the defence counsel has placed reliance on the evidence of revenue officials examined on behalf of the prosecution. However, the evidence of PW.11 clearly establishes that the accused was in possession of documents relating to the said work. Apart from that, the evidence laid by the defence discloses that initially there was bar for mutation, but however that bar was raised in February itself and admittedly, application was filed long back. When the bar was raised in February itself, why the accused has taken time till 6/4/2009 for mutating is not at all forthcoming. Apart from that the evidence laid of revenue officials who have turned hostile is inconsistent. PW.15 though turned hostile in the cross examination by prosecution, he has admitted that PW.11 had send a notice in writing to accused regarding the delay in enquiry and submitting a report. This clearly establishes that there was inordinate delay in mutation in spite of the ban for mutation was raised by the Government. It is for the accused to explain, but he has not explained anything and his simple case is that there was no work pending. Apart from that there is no material evidence placed to show that accused has brought to the notice of complainant that his work was concluded by him well in time. No such evidence is also forthcoming. 16. PW.18 is the sanctioning authority and deposed regarding sanction given. Even independent witness PW.6 partially supported the case of the prosecution regarding complainant approaching the accused and enquiring regarding his work. No evidence is placed by the defence counsel to show that the work which attended by the complainant three days earlier itself was brought to the notice of the complainant. 17. The learned counsel for the appellant has placed reliance on a decision of this Court in the case of The State of Karnataka vs. Narayanaswamy, in Crl.A.No.2506/2012 dtd. 29/9/2021. But the facts in the said case are entirely different. 17. The learned counsel for the appellant has placed reliance on a decision of this Court in the case of The State of Karnataka vs. Narayanaswamy, in Crl.A.No.2506/2012 dtd. 29/9/2021. But the facts in the said case are entirely different. In the said case trap was held at one place and mahazar was written at another place as admitted by the prosecution witnesses and the shadow witness also did not support the case of the prosecution. In the said case, drawing mahazar at the spot itself was under shadow of doubt and as such the benefit was extended to the accused. But the said facts and circumstances would not come to the aid of the accused in the present case in anyway. As in the instant case, recovery of the amount and drawing the trap mahazar are undisputed and the accused himself is simply asserted that there was no demand and acceptance. He further placed reliance on a decision of this Court in the case of SRI LAXMAN MALLAPPA VANAKI VS. THE STATE OF KARNATAKA in Crl.A.No.2600/2012 dtd. 30/5/2022, the decision in the case of R. MALINI VS. STATE OF KARNATAKA reported in 2012 (1) KCCR 414 and in the decision of the Apex Court in the case of STATE BY SPECIAL POLICE ESTABLISHMENT VS. D. KRISHNAMURTHY reported in 1996 SCC (Cri) 102. But the principles enunciated in the above cited decisions will not come to the aid of the appellant/accused in anyway as facts and circumstances are entirely different. 18. On the contrary, the larger bench of the Apex Court in a decision in the case of DHANVANTRAI BALWANTRAI DESAI VS. STATE OF MAHARASHTRA reported in AIR 1964 SC 575 has held that once accused was shown to have accepted the money, which was not legal remuneration, the presumption is required to be raised and rebuttal must be by explanation which must be true and not merely a plausible. Again, the constitutional bench in a decision in the case of C. I. EMDEN VS. STATE OF UTTAR PRADESH reported in AIR 1960 SC 548 has held that if it is shown that the accused has received the stated amount and that the said amount was not legal remuneration and then the condition prescribed under Sec. for drawing presumption is satisfied. STATE OF UTTAR PRADESH reported in AIR 1960 SC 548 has held that if it is shown that the accused has received the stated amount and that the said amount was not legal remuneration and then the condition prescribed under Sec. for drawing presumption is satisfied. Further this view of the Apex Court is again reiterated by the Constitutional Bench of the Apex Court in a recent decision reported in Crl.A.No.1669/2009 dtd. 15/12/2022 in the case of NEERAJ DUTTA VS. STATE (GOVT. OF N.C.T., DELHI) wherein it is observed that even in the case of the hostility of shadow witness or complainant, the prosecution can prove the demand and acceptance by circumstantial evidence and in case amount was found have been paid and recovered from the accused, drawing presumption under Sec. 20 is mandatory. In the instant case, the accused has not produced any documents to rebut the said presumption except a formal denial. Further in the decision in the case of DHANESHWAR NARAIN SAXENA VS. THE DELHI ADMINISTRATION, reported in AIR 1964 SC 195, the apex Court has held that the misconduct by the public servant need not to be in connection of his own official duty. Hence, in view of these constitutional bench and larger bench decisions of the Apex Court, it is evident that the prosecution is able to establish that the tainted amount was recovered from the custody of the accused. There is material evidence to show that the tainted amount was not a legal remuneration and hence, the presumption is required to be drawn. Accused has failed to rebut the said presumption, except formal denial and the rebuttal should be on the basis of preponderance of probability but that is not forthcoming in the instant case. The mere explanation on the part of the accused is not a rebuttable and he has not lead any cogent evidence. Though PW.2 has turned hostile, his cross examination by the prosecution clearly establish that he has supported the case of the prosecution in material aspects. The demand and acceptance are established by the evidence of PW.1 and conduct of the complainant, who is admittedly relative of complainant. It is again corroboration by evidence of investigating officer. 19. The learned Sessions Judge has considered all these aspects in proper perspective and has in detail analyzed the oral as well as documentary evidence. The demand and acceptance are established by the evidence of PW.1 and conduct of the complainant, who is admittedly relative of complainant. It is again corroboration by evidence of investigating officer. 19. The learned Sessions Judge has considered all these aspects in proper perspective and has in detail analyzed the oral as well as documentary evidence. He has also considered the morality of the society and tendency of witnesses in turning hostile and after appreciating the evidence, he has rightly convicted the accused. The judgment of conviction and order of sentence passed by the learned Sessions Judge cannot be said to be erroneous or arbitrary at any stretch of imagination. Further he has also imposed a reasonable sentence. The citations relied by the learned counsel for the appellant would not come to the aid of accused in anyway in view of constitutional and larger bench decisions of Apex Court referred above. Further the corruption is prevalent in the society and spreading like a cancer and it is also evident from the evidence of revenue officers that they intended to protect the accused. Under such circumstance, such activities are required to be dealt with iron hand. Hence, learned Special Judge is justified in imposing a reasonable sentence against the accused. Hence, the sentence passed by the learned Sessions Judge does not suffer from any illegality or infirmity so as to call for any interference by this Court. As such the point under consideration is answered in the negative and as such the appeal fails. Hence, I proceed to pass the following: ORDER i) The appeal dismissed by confirming the judgment of conviction and order of sentence passed by the learned District and Sessions Judge, Bagalkot in Special Case No.38/2010 dtd. 12/11/2013. ii) Send back the Trial Court records along with a copy of the judgment to the learned Special Judge with a direction to secure the presence of the accused for serving the sentence.