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IN THE HIGH COURT OF BENCH

DATED THIS THE 5 TH DAY OF APRIL 2014

BEFORE

THE HON’BLE MRS.JUSTICE RATHNAKALA

CRIMINAL APPEAL NO.3539/2010

BETWEEN:

Laxman, Mother Sayabavva Choragi Since deceased through LR: Shakuntala W/o Laxman Choragi Age: 50 years Occ: Household R/o C/o L.G.Alur Hulegamma Nilaya Bhavan: Nagar Near All Radio Station . …APPELLANT

(By Sri.Sharanappa Mattur and Sri.Baburao Mangane, Advs.)

AND:

The State of Karnataka By Lokayukta Police Bijapur. …RESPONDENT

(By Sri.A.Syed Habeeb, Spl.PP)

This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction and sentence dt.25.2.2010 passed by the Special 2

Judge, Bijapur in Spl.Case (Lok) No.2/2008 and convicting the appellant/accused for the offence punishable under Sec.7 & 13(1) (d) r/w Sec.13(2) of the Prevention of Corruption Act and the appellant/accused is sentenced to undergo R.I. for 2 years and to pay a fine of Rs.5,000/- and in default S.I. for one month for the offence punishable under Section 7 read with Section 13(2) of the Act and the appellant/accused is sentenced to undergo R.I. for 2 years and to pay a fine of Rs.5,000/- and in default SI for 1 month for the offence punishable under Sec.1391)(d) r/w Sec.13(2) of the Act.

This Appeal having been heard and reserved for judgment on 25.3.2014 and coming on for Pronouncement of Judgment this day, the Court delivered the following:

J U D G M E N T

This Appeal is filed by the accused, since dead represented by his wife, against the judgment of conviction dated 25 th February 2010 passed in Special Case (Lok)

No.2/2008 by the Special Judge, Bijapur, by which the accused was convicted for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 (hereinafter referred to as

‘the Act’ for brevity).

2. Briefly stated the case of the prosecution is, on

27.8.2007 while working as an Office Superintendent in the office of the BEO, the appellant/accused demanded and 3

accepted bribe of Rs.1,000/- from the complainant/PW-1 for regularizing the absence of complainant’s younger brother,

who was working as a Teacher in Higher Primary School,

Ainapur LT, into Earned Leave and for sanctioning of the leave so also two increments and half pay salary due in respect of five months of suspension period.

3. On receipt of the complaint, the Police Inspector,

Lokayuktha registered the case, procured two official

witnesses, conducted entrustment mahazar in his office.

During the said mahazar, the complainant produced

currency notes of Rs.1,000/-. Same were applied with

phenolphthalein powder and handed over to the complainant

with suitable instructions to pay the amount if the accused

demands. The panch-1/shadow witness was given direction

to follow the complainant and to hear the conversation

between the complainant and the accused and also to

carefully observe as to where the tainted money will be kept

by the accused after receiving the same from the

complainant. Accordingly, the complainant and the raid

party went to the spot. The complainant handed over the 4

tainted money to the accused and the accused received the same by right hand and kept in the pocket of his shirt. On receiving predetermined signal, the Investigating Officer, the second panch witness and the Lokayuktha Staff went inside the office and the tainted money was recovered from the possession of the accused. The trap mahazar was drawn.

4. On 28.8.2007, the Investigating Officer seized the records connected to the work of the complainant in the presence of panch witnesses from the possession of the First

Division Assistant of the B.E.O.’s office. After obtaining sanction from the Disciplinary Authority of the complainant, after procuring FSL report pertaining to the articles seized during the entrustment mahazar and trap mahazar, the

Investigating Officer, charge-sheeted the accused.

5. During the trial, the prosecution examined 10

witnesses, marked 12 documents and 10 material objects.

Though the defence did not opt to adduce evidence, five documents were marked as Exs.D1 to D5 during the cross- examination of prosecution witnesses. After recording 313 5

statement and on the submission that the accused has no defence evidence, the Special Court has drawn the judgment of conviction and sentence.

6. Sri.Sharanappa Mattur, learned Counsel appearing for the appellant submits that, the brother of the complainant on whose behalf the complainant is alleged to have paid the bribe money, is examined as PW-5, but he totally turned hostile to the prosecution case. The shadow

witness has not testified about the accused demanding the bribe; the work of the complainant’s brother was not pending on the table of the accused. It is evident from the testimony of the Disciplinary Authority/the then Director of the Public

Education Department/PW-9 that he had not applied his mind to the case papers tabled before him by the

Lokayuktha, he expressed his ignorance to the question

whether or not on the date of lodging complaint,

departmental enquiry (pertaining to the complainant’s

brother) was pending. It has come in the evidence that,

complainant’s wife being a teacher was working at

Kondagooli and the complainant was working at Kadlewada. 6

The complainant wanted his wife to be transferred either to

Sindagi or Hipparagi. In this connection, he had met the

B.E.O. and also the accused. By the order of the B.E.O., his

wife was transferred from Kondagooli to Devara Hipparagi. It is the further argument of Sri.Sharanappa Mattur that, the complainant made the accused believe that he is paying

Rs.200/- as a treat since his wife got transferred to the place of choice. Recovery of tainted money by itself will not prove the entire case of the prosecution. The ingredients of Section

7 of the Act, for demand and acceptance of bribe, are not proved. Since the work of the complainant’s brother was not pending before the accused at the time of the trap, it shall be necessarily held that the prosecution failed to prove their charge under Section 7 of the Act. That being so, the Court cannot invoke the statutory presumption under Section 20 of the Act against the accused and there is no case under

Section 13(1)(d) read with Section 13(2) of the Act.

7. Sri.Sharanappa Mattur further hastens to submit

that, the appellant expired on 25.2.2010 and with the leave

of this Court, his widow is now prosecuting the appeal. 7

8. In reply, Sri.Syed Habeeb, Special Public Prosecutor for the Lokayuktha Police submits, “sympathy shall not come in the way of assessing the merits of the case. There is overwhelming evidence on record establishing that, the deceased demanded and accepted the bribe amount of

Rs.1,000/- from the complainant to do official favour for the brother of the deceased viz., Mahaboob Patil, the Assistant

Teacher. His school comes within the jurisdiction of the

B.E.O.’s office where the accused is working”. He relies on the judgment of the Full Bench of the Apex Court reported in

2001(SCC) Criminal 258 in the matter of M.Narsinga Rao

–vs- State of A.P. It was the case where the tainted money

was recovered from the possession of the accused; the complainant and the shadow witness had turned hostile to the prosecution case. The judgment of conviction recorded by Special Court was upheld both by High Court and Apex

Court. While elaborating on the statutory presumption under Section 20(1) of the Act, the Apex Court observed as under:

“13. Before proceeding further, we may point out that the expressions “may presume” and “shall 8

presume” are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as “factual presumptions” or “discretionary presumptions” and those falling under the latter as “legal presumptions” or “compulsory presumptions”. When the expression “shall be presumed” is employed in Section 20(1) of the Act, it must have the same import of compulsion.

14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.”

9. Further while emphasizing on the standard of proof, it was held as under:

“15. The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after 9

considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word “proved” in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co.Ltd. observed liked this:

“Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”

10. Sri.Habeeb took me through the judgments of the

Apex Court reported in

1. (2011) 1 SCC 491 (Kootha Perumal –vs- State through Inspector of Police, Vigilance and Anti-Corruption);

2. (2013) 3 SCC 721 ( K.S.Panduranga –vs- State of Karnataka) ; &

3. 2012 AIAR (Criminal) 713 ( Syed Ahmed –vs- State of Karnataka) wherein conviction was the end result. 10

11. His reply submission with regard to no work pertaining to the complainant was pending before the accused is “it is not necessary that, the complainant must be the beneficiary of the official favour expected from the accused. It is the cardinal principles of the Criminal

Jurisprudence that anybody can set the criminal law into

motion. Admittedly, the brother of the complainant working

as a Teacher, within the jurisdiction of B.E.O.’s office where

the accused was employed, was due for his arrears of salary

and two withheld instalments. The accused, though was not

the competent authority to sanction the leave salary and

increment, being the Office Superintendent was in a position

to get the work done for the complainant’s brother at the

earliest point of time. After being caught red handed, he

gave statement in writing that, the complainant gave him an

amount of Rs.200/- on his own since his wife had got a

transfer to the place of choice. He has not explained about

the remaining portion of the tainted money i.e., Rs.800/-. In

the light of the principles laid down by the Apex Court, once

the prosecution establishes that the tainted money was 11

recovered from his possession, the statutory presumption under Section 20(1) of the Act automatically comes to play and it was for the accused to rebut the said presumption.

Unfortunately, it was not done. Wherefore, the judgment of conviction recorded by the Special Court is well reasoned,

judicious and does not call for interference”.

12. In the backdrop of the above rival submissions and having gone through the impugned judgment and the lower court records carefully, the following point arises for my consideration:

“Whether the judgment of the Special Court is not legal, thereby calling for interference?”

13. Firstly, the prosecution relies on the circumstantial evidence regarding the pending work pertaining to the complainant’s brother with the accused as on the date of the trap. As such, no document was seized from the possession of the accused during the trap mahazar,

which pertains to the brother of the appellant. On the next day of the trap, i.e., on 28.8.2007, the concerned records 12

were seized from the then First Division Assistant of

B.E.O.’s office under a mahazar Ex.P8. It is the file pertaining to the Departmental enquiry of Mahiboob Patil, the brother of the complainant. Accordingly, the Enquiry officer on completion of enquiry had submitted a report on

3.8.2007 and the B.E.O. on 25.8.2007 being the competent authority signed the draft memo that, the delinquent official may be warned and the matter may be closed. Though he signed the draft memo, he had not signed the typed copy of the memo for despatch to the concerned official. 26 th being

Sunday, trap is held on 27 th and on 28.8.2007, the entire

Departmental enquiry file is seized under the mahazar.

Throughout it was the prosecution story that, the brother of

the complainant was entitled for the withheld pay of five

months’ suspension period with two increments. It is

improbable that even before the typewritten order signed by

B.E.O. is communicated to the complainant’s brother,

complainant would have foreseen the result of the enquiry

and there would be transaction between the accused and the

complainant about release of the withheld salary and 13

withheld increment. Both in his complaint averments and the sworn testimony, the complainant has suppressed the material facts pertaining to the said domestic enquiry.

14. Complainant’s case is, 7-8 days prior to lodging the complaint, the accused demanded Rs.2,000/- again on

25.8.2007, he demanded the amount. In respect of the demand made 7 – 8 days, there is no corroboration to his statement. With regard to the alleged demand at the time of the trap, the shadow witness, though saw the accused receiving the amount by his right hand and keeping the same in the pocket of his shirt, has not heard the conversation between the complainant and the accused. The explanation given by the accused at the earliest point of time, i.e., ‘Rs.200/- was given by the complainant voluntarily’ corroborates with the oral evidence of eye-

witness and also FSL report. Phenolphthalein powder was found only in his right hand, not the left hand. None of the

witnesses stated that he counted the amount by his both hands. Immediately after receiving the amount, he has simply put the amount into his pocket and that probabalises 14

he did not know how much money was received by him.

That is why he was only able to explain about Rs.200/- only not knowing how much of tainted money was recovered from his pocket. The accused need not rebut the prosecution case by adducing evidence. It is just enough that he is able to show an alternative probable theory during the evidence of prosecution witnesses. When the events are viewed in chronological order, we get the outline of what might have transpired between the complainant and accused. Firstly, complainant’s wife gets a transfer to the place of choice after much effort. As per complainant’s sworn testimony, he had been previously harassed by the accused 7 or 8 times and

was rebuffed that ‘the complainant’s brother shall not get the salary and he shall be punished’. That indicates, the antipathetic feelings complainant had against the accused.

He cannot claim ignorance of the departmental enquiry pending against his brother in respect of his unauthorised absence. It also must be within his knowledge that, the only draft of the final order was signed by the B.E.O. on

25.8.2007. Suppressing the material facts, he lodges 15

complaint against the accused, manages to contact the accused from a close angle (see sketch Ex.P9) and what representation was made to the accused by him could not be heard by the shadow witness. Under such circumstances, tainted money is passed on to the accused. To make out an offence under Section 7 of the Act, demand of the bribe amount, is sine qua non. A mere recovery of the tainted

money alone is not sufficient to convict the accused. That is

the trites of law.

15. The Apex Court in its judgment reported in AIR

2013 SC 3368 in the matter of State of Punjab –vs-

Madan Mohan Lal Verma reiterated the settled law as under:

“7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with 16

regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person.” 17

16. In the light of the above, it probabalises that, on the representation of the complainant, the accused received the amount believing it to be Rs.200/- as a treat. The trial court without assessing the material from a proper perspective has mechanically jumped to the conclusion that, the prosecution has proved the case under Section 7 and 13 of the Act, solely on the ground that the tainted money was recovered from him. The learned Special Judge should have drawn line to distinguish between receipt of tainted money and acceptance of illegal gratification.

17. Now coming to the validity of the sanction order accorded by the Disciplinary Authority, PW-6, while in the

witness box, during cross-examination, he expressed ignorance as to whether or not departmental enquiry was pending as on the date of the complaint. According to him, the final report was furnished to him by the Lokayuktha

Police even before he accorded sanction. He was unable to answer that, since the final order on the departmental enquiry was not signed by the B.E.O., the request for the release of withheld salary and increment could not have 18

been considered. That by itself explains non-application of mind of the Disciplinary Authority, thereby very sanction order is vitiated. This is another negative scoring for the prosecution.

18. Much of the discussion of the trial court is spent on appreciation of the evidence adduced by the complainant and the shadow witness to land upto the conclusion that there was demand for bribe. The Trial Judge holds the statutory presumption under Section 20 of the Act is not rebutted by the accused and has drawn conviction.

19. Dehors the cross-examination evidence of PWs, a perusal of the examination-in-chief evidence coupled with the explanation offered by the accused at the earliest point of time is sufficient to arrive at the conclusion that the demand of the bribe is not proved. It is the trites of law that, the statutory presumption is applicable in a case of proved demand and acceptance of illegal gratification. Since the prosecution has not discharged the initial burden successfully, the onus does not shift to the accused to rebut 19

the said presumption. In AIR 2013 SC 3368 in the matter of State of Punjab –vs- Madan Mohan Lal Verma (supra), the observation made by the Apex Court in para-7 is relevant to the facts on hand, as extracted above. In all possibility, the complainant has stage managed the trap to wreak his ill feelings against the accused.

20. The appreciation of evidence is not in accordance

with the settled principles of law reigning the field of

Criminal Jurisprudence. In that view of the matter, the impugned judgment cannot be sustained and liable to be set aside.

Accordingly, the appeal is allowed. The judgment of conviction dated 25 th February 2010 passed by the Special

Judge, Bijapur, in Special Case (Lok) No.2/2008, is set aside. The wife of the deceased appellant Smt.Shakuntala is permitted to withdraw the fine amount of Rs.10,000/- which is deposited in the trial court.

Sd/- JUDGE

KNM/-