Dismissed

State by Lokayuktha Police v. T Kotrappa

Karnataka HC12 Mar 2013CRL.A/1057/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the State's criminal appeal against an acquittal. It upheld the Trial Court's finding that prosecution witnesses were inconsistent and failed to corroborate the trap charge of taking a bribe under the Prevention of Corruption Act.

What did the court decide?

The criminal appeal was dismissed and the judgment of acquittal passed by the Principal Sessions Judge was confirmed.

State by Lokayuktha Police Vs T Kotrappa — Corruption | Karnataka HC (2013)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12^TH DAY OF MARCH, 2013

¶3

:BEFORE:

¶4

THE HON’BLE MR. JUSTICE V. SURI APPA RAO

¶5

Crl.A.No. 1057 OF 2011

¶6

Between:

¶7

State by Lokayuktha Police, Shimoga. …Appellant

¶8

(By Sri L. Umakanthan, SPP)

¶9

And :

¶10

T. Kotrappa S/o Mahadevappa, Aged about 54 years, Secretary, Nisarani Grama Panchayath, R/o Chamarajpete, Court Road, Sorab Town, Sorab, Native of Honnali Town. …Respondent

¶11

(By Sri. G.K. Narasimha Murthy, Adv.)

¶12

This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973, prays that this Court be pleased to grant leave to appeal against the Judgment and Order of Acquittal dated 25.04.2011 passed by the learned Principal Sessions Judge and Special Judge, Shimoga in Special (PC) Case No.2/2005 thereby acquitting the respondent/accused for the offences punishable under Section 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act; set aside the aforesaid Judgment and order of acquittal dated 25.04.2011 passed by the learned Principal Sessions Judge and Special Judge, Shimoga in Special (PC) Case No.2/2005 by allowing this Criminal Appeal.

¶13

¶14

This Criminal Appeal coming on for Final Hearing this day, the Court made the following:

¶15

: JUDGMENT :

¶16

The State represented by Karnataka Lokayuktha

¶17

Police, Shimoga filed this appeal directed against the Judgment of Acquittal in Special (PC) Case No.2/2005 dated 25^th April 2011 on the file of the Principal Sessions Judge and Special Judge, Shimoga, whereby the learned Sessions Judge found the respondent/accused not guilty for the offences under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.

¶18

The brief facts of the case are as hereunder :

¶19

The complainant by name S. Gurumurthy – PW-1 had purchased teak wood and other spices of trees standing in the land bearing Khaneshumari No.17/P situated at Talakalakoppa Village, Sorab Taluk from the owners Kamalakara, Narahari Rao, Mahalakshmamma and submitted an application to the District Conservator of Forests, Sagar to issue permission to cut the trees. After obtaining the report from the

¶20

¶21

Forester, the Assistant Conservator of Forests

¶22

submitted a report to the District Conservator of Forest, Sagar and on 10.10.2004 the DCF, Sagar sent the file to the Executive Officer, Taluk Panchayath, Sorab seeking ‘No Objection Certificate’ in turn to the Secretary, Grama Panchayath, Nisarani on 02.11.2004 for report. Therefore, the complainant approached the accused who was working as Secretary of Grama Panchayath with a request to issue ‘No Objection Certificate’, for which the accused demanded the bribe amount of Rs.3,000/- and also informed the complainant that he had not yet received the file from the Forest authorities. Subsequently, on 16.11.2004 the complainant again visited the house of the accused. At that time, the accused instructed the complainant to come in the evening along with bribe amount of Rs.3,000/-. On the same day at about 7.30 p.m. the complainant went to the house of the accused and at that time also the accused demanded bribe of Rs.3,000/- and that the complainant informed the accused that he will come tomorrow along with the bribe amount and went away.

¶23

¶24

On 17.11.2004 the complainant went to the Lokayuktha Police Station and submitted report to the Inspector, the same was registered as Crime No.2/2004 for the offences under Sections 7, 13 (1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988. The Inspector thereafter secured two panchas and introduced them to the complainant and narrated about the submission of the report by the complainant and got searched the person of the complainant through the panch D.S. Shivakumar and found cash of Rs.1,060/- in the shirt pocket and a spectacle and a pen and they were kept in a hand bag and as per the instruction of the Inspector, the complainant produced 30 currency notes each having Rs.100/- denomination on the table and they were smeared with phenolphthalein powder and later, in the presence of K. Basavaraja – PW-2 and D.S. Shivakumar – PW-3, pre-trap mahazar was drawn and PW-3 – Shivakumar was asked to act as shadow witness and Basavaraja kept those treated notices in the shirt pocket of complainant – Gurumurthy and after pre-trap mahazar was drawn and after completing the required

¶25

¶26

procedure, the Inspector gave a Voice Recording Machine to the complainant and he narrated the techniques to operate that machine. At about 2.00 p.m. the complainant and the panchas, Inspector and his staff left Shimoga and reached at about 4.00 p.m. and parked the jeep near the bus stand and sent the complainant and shadow witness to the residential room of the accused situated near the Court at Sorab. The complainant went into the room and noticed that the accused was not present there. But one Deshpande, the friend of accused was present and he told them that the accused will come to the room within 5 minutes. The Inspector thereafter asked Basavaraja to act as shadow witness and Shivakumar had a walk with Deshapande and he came to know that PW-3 is related to the accused. After 10 minutes the accused entered into the room and the complainant saluted him and the accused told the complainant to come after 5 to 10 minutes and PW-2 – Basavaraja went to the room of and sat on the cot. The accused called the complainant and asked him to sit on the cot by the side and also

¶27

¶28

asked the complainant whether he has brought the amount. When the accused told the complainant that there were three khatedars in respect of the land. Therefore, the accused further demanded an additional amount of Rs.1,500/-. But the complainant told him that he has brought Rs.3,000/- and assured him that he would pay the additional amount. Then the accused asked the complainant to keep those notes on the cot and when the complainant kept the notes aside the notes, the accused kept paper on those notes with his right hand. At that time, PW-2 was standing near the door, but the complainant came out of the room and gave signal to the Inspector. The Inspector came and confirmed about the demand and acceptance of bribe amount by the accused through the complainant and shadow witness. The Inspector introduced himself to the accused by showing his identity card and got washed his hands in the sodium carbonate solution and solution turned its colour into pink when the accused pointed out the currency notes kept on the cot. The Inspector seized those notes and panchas verified those

¶29

¶30

notes and verified that they are the very notes treated with Phenolphthalein powder and later those notes were preserved in a sealed cover and the Inspector collected the powder through a cotton from the place where the notes were kept by the accused and that cotton was got washed in a sodium carbonate solution and it turned its colour into pink. Later, the Inspector preserved all the pink colour solution in a separate bottles, closed them, sealed them and on questioning about the currency notes, the accused gave his explanation. After that, the photographs were taken, trap mahazar was drawn and he took the accused to Nisarani Panchayath Office and seized the connected file pertaining to the issuance of No Objection Certificate to the complainant under a cover of mahazar and arrested the accused, took him to the Police Station and recorded the statements of witnesses. He sent all the seized materials including the tainted currency notes to the F.S.L. for examination and report. After obtaining the orders from ADGP, Lokayuktha and after completion of the investigation,

¶31

¶32

the Inspector of Police, Lokayuktha filed charge sheet against the respondent-accused.

¶33

After hearing the Special Public Prosecutor and the Counsel for the accused, the Trial Court framed the Charges under Section 7, 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988 and read over and explained to him for which, the accused/respondent pleaded not guilty.

¶34

In order to bring home the guilt of the accused for the aforesaid offences, the prosecution in all examined PWs 1 to 7 and got marked Exs.P1 to P23 and MOs 1 to 13. During the course of cross-examination of the prosecution witnesses, the defence got marked Ex.D1 and D1(a).

¶35

Considering the oral and documentary evidence produced by the prosecution, the learned Special Judge found the accused not guilty for the charges for which he was charged and accordingly, acquitted the accused under Section 248(1) of Code of Criminal Procedure.

¶36

¶37

Aggrieved by the Judgment of acquittal, the State represented by Lokayuktha Police filed this appeal.

¶38

The learned Special Public Prosecutor submits that the respondent/accused is a competent person to issue No Objection Certificate and the demand of Rs.3,000/- from the complainant and he lodged the complaint to the Lokayuktha Police and on 17.11.2004 the Inspector conducted pre-trap in the presence of the panch witnesses PWs 2 and 3 when the accused demanded Rs.3,000/- from PW-1 for issuing no objection certificate for the cutting of the trees purchased by the complainant from the villagers of Talakalakoppa Village Ulavi Hobli, Sorab Taluk and that

¶39

PW-1 to PW-4 supported the prosecution case. Therefore, the respondent-accused is liable for conviction.

¶40

The learned Counsel for the accused supported the Judgment of the Trial Court and submitted that there are no grounds to interfere with the judgment of acquittal as the evidence of PWs 1 to 4 are not

¶41

¶42

consistent and corroborative with regard to the alleged trap conducted by PW-7 in the presence of PWs 1 to 4.

¶43

The point for consideration in this appeal is :

¶44

“Whether the prosecution established the charges leveled against the accused beyond reasonable doubt” ?

¶45

According to the prosecution, PW-7 registered the case in Crime No.2/2004 basing on the complaint given by PW-1. Thereafter, he secured panchas PWs 2 and 3 and all of them went near the residential house of the accused situated near the Court at Soraba. When the complainant entered into the room, the accused asked him whether he has brought amount of Rs.3,000/- for issuing No Objection Certificate and the complainant has stated that the accused has demanded additional amount of Rs.1,500/- and asked the complainant to keep the amount on the cot and when the complainant kept the notes on the cot, the accused kept aside the notes and placed a paper on the notes by his right hand. Meanwhile, when the complainant gave a signal

¶46

¶47

to the Inspector, the Inspector entered into the room and searched and seized the amount of Rs.3,000/- in the presence of PWs 2 and 3.

¶48

The Trial Court acquitted the accused on the ground that the evidence of PWs 1 to 4 is not consistent and corroborative and not all material particulars about the trap and the evidence of PWs 1 to 4 and 7 is not reliable. Therefore, the accused was found not guilty for the offences for which he was charged.

¶49

In order to establish the charges against the accused, the prosecution mainly relying on the evidence of PWs 1, 2, 3 and 7. PW-1 is the complainant, PWs 2 and 3 are the panch witnesses and PW-7 is the Investigating Officer.

¶50

PW-1 has stated in his evidence that he was in the habit of purchasing the standing trees from the various private individuals and he obtained permission from the competent authority and cutting the wood and selling the standing trees to earn profit out of it. According to him he purchased teak wood and other spices of the

¶51

¶52

standing trees and obtained agreement from the owner of the standing trees. Thereafter, he submitted an application to ACF, Sagar to issue permission to cut the standing trees. After obtaining the entire file from the ACF, DCF, he given the file to the Chief Executive Officer, Taluk Panchayath, Sorab. On 30.10.2004, the Chief Executive Officer, Taluk Panchayath, Sorab gave the file to PW-1 on 2.11.2004 with an instructions to hand over the same to the Secretary, Grama Panchayath, Nisarani. On the same day he took the file and delivered the same to the accused at his residential house and requested him to issue No Objection Certificate and the accused demanded bribe of Rs.3,000/- from him. Therefore, on 17.11.2004 at about 10.35 A.M. he went to Lokayuktha Police Station, Shimoga and submitted Ex.P1 – report. The Inspector secured the panchas PWs 2 and 3 and conducted pretrap mahazar and PW-3 – Shivakumar was instructed to act as shadow witness and PW-2 – Basavaraja as panch witness. He further stated that when he entered into the house, the accused was sitting on the cot and he

¶53

¶54

asked him to give the amount. Then PW-1 gave the tainted currency notes from his shirt pocket from his right hand and accused with his right hand made gestures to PW-1 to keep the amount on the cot and accordingly, PW-1 kept the amount on the cot and the accused put a paper on it. Then the accused pulled those currency notes with his right thumb and informed PW-1 that he will deliver the documents to him on the next day morning. After that, he gave a signal to PW-7 and PW-7 along with PW-3 and his staff entered into the room of the accused and arrested the accused and seized the tainted amount kept on the cot.

¶55

Out of PWs 2 and 3 who acted as panch witnesses

¶56

in this case, PW-2 is a Veterinary Doctor and PW-3 is a Technical Assistant working in the Public Works Department, Shimoga. PW-4 is the Secretary, Grama Panchayath, Hosabale, Sorab Taluk, who was also present along with the accused at the time of the alleged trap and seizure of tainted currency notes from the accused. During the course of examination under Section 313 of Cr.P.C., the accused has stated that he

¶57

¶58

had no power to issue no objection certificate and he is not the competent person to issue No Objection Certificate and that the President of the Panchayath Committee is competent to issue No Objection Certificate. He has further stated that PW-1 came to his room on the date of the alleged trap and sat on his cot by his side and asked him about the issuance of No Objection Certificate. He informed PW-1 that he will place it in the meeting and later it will be issued. Then PW-1 went away from the room. Immediately, the Police came and caught hold of him and asked him where is the bribe amount, but he informed the Police that he never demanded the bribe amount and that PW-1 being the timber merchant who used to give false complaint against the public servants to get his work done without giving a reasonable time and wanted to compel the accused to issue No Objection Certificate before placing his file before the Panchayath Committee Meeting and that it appears PW-1 thrusted the tainted notes on the cot without his knowledge and that the tainted notes were not at all seized from him.

¶59

¶60

PW-2 who acted as panch witness in this case has deposed in his evidence that on 17.11.2004 at about 4.40 p.m. or 4.45 p.m. he went inside the room of the accused and was standing outside the door of the room, then the accused was sitting on the cot asked PW-1 to sit on his cot. The accused asked PW-1 whether he had brought the amount. PW-1 removed the currency notes from his right hand from his shirt pocket and attempted to give those notes in the hands of accused. But the accused made gestures through his hands to keep them on the cot, but he did not touch those notes. After that, the accused moved those notes and kept a paper on the notes with his right hand. In the cross-examination, PW-2 has stated that the distance in between the room of accused and the place where he was standing is about 20 meters or 65 feet. In the evidence PW-1 has stated that PW-2 was standing at a distance of 200 feet from him. The Trial Court therefore, observed at para 28 of the Judgment that PW-2 was at a distance of 200 feet. PW-1 has admitted in his evidence that he cannot hear and visualize the conversation and events those

¶61

¶62

have taken place inside the room. He has further stated that pre trap mahazar – Ex.P2 was drawn and he was not aware of the place of trap to be conducted and the report given by the PW-1.

¶63

PW-2 has further stated in the cross-examination

¶64

that the metallic seal was not at all given to him by the Inspector nor he did not state before the Inspector as per Ex.D1 and Ex.D1(a) with regard to the receipt of metallic seal. Whereas, PW-7 has stated that the Inspector of Police who has investigated this case has stated that the metallic seal used for sealing of the sample bottles and packets was delivered to PW-2 with instructions to keep them in his custody and to produce it before the Court whenever required. But PW-2 has clearly stated in his evidence that he was not at all given metallic seal used for the above sample bottles with instruction to produce the same whenever required by the Court.

¶65

In the evidence, PW-1 also admitted that the accused did not touch the tainted notes, he moved the

¶66

¶67

notes with right thumb and placed paper on the notes. But the evidence of PW-7 and the mahazar shows that both the hands of the accused were turned into pink colour. When he did not touch the tainted notes as per the evidence of PWs 1 and 2 with his left hand, the hand wash of left hand thumb turning into pink colour would not arise.

¶68

PW-2 other panch witness who followed PW-7 – Inspector of Police into the room of the accused and found tainted notes on the cot has stated that he has not heard the conversation and events taken place in between PW-1 and the accused.

¶69

It is the case of the prosecution that PW-4 was present at the time of conducting trap and also at the time of drawing trap mahazar. But his signature was not obtained on mahazar. In the cross-examination, PW-4 has stated that he did not hear the conversation between PW-1 and the accused, but he has seen the currency notes on the cot. Thus, he has not stated about the accused demanding Rs.3,000/- from PW-1

¶70

¶71

and PW-1 giving the tainted currency notes of Rs.3,000/- and accused asking the complainant by way of signal to keep the notes on the cot and accused moving the currency notes with his right hand and keeping a paper on it. He has not stated about the demand of bribe amount by the accused and he has also not stated as to who kept the currency notes on the cot. He has clearly stated in his cross-examination that he has not heard the conversation between PW-1 and the accused except seeing the currency notes on the cot. The Investigating Officer – PW-7 has clearly stated in his evidence that he was not inside the room when accused was demanding the bribe and accepting the bribe. He has clearly stated in his evidence that he was not aware about the accused demanding bribe amount or not or PW-1 himself deliberately placed the notes on the cots without the knowledge of the accused.

¶72

PW-4 is the independent witness. His evidence is silent about the accused demanding bribe from PW-1 and PW-1 giving the amount to the accused, keeping the amount on the cot. According to PW-1, the currency

¶73

¶74

notes were kept on the cot. Therefore, it is clear by the evidence of PW-4 that PW-1 must have kept the amount on the cot and a paper on it without the knowledge of the accused.

¶75

It is the specific case of the respondent – accused that he is not the competent person to issue No Objection Certificate to the complainant and the Panchayath Committee headed by the President is the competent authority to issue No Objection Certificate. Therefore, the question of demanding amount of Rs.3,000/- from PW-1 to issue No Objection Certificate would not arise. The prosecution has not filed any documentary evidence or examined any competent person to prove the accused was having powers to issue No Objection Certificate to PW-1 to cut and carry the trees said to have been purchased by him from the land owners of the village.

¶76

The learned Sessions Judge after appreciating the entire evidence on record, rightly came to the conclusion that the evidence of PWs 1 to 4 and 7 is not

¶77

¶78

consistent and corroborative in all material particulars about the alleged trap and came to the conclusion that the prosecution failed to prove the charges leveled against the respondent.

¶79

Therefore, considering the evidence on record, I feel that there are no grounds to interfere with the findings of the Trial Court.

¶80

For the reasons stated above, the appeal filed by the State represented by Lokayuktha Police is liable to be dismissed. Accordingly, the appeal is dismissed. The Judgment passed by the learned Principal Sessions Judge and Special Judge, Shimoga dated 25^th April 2011 in Special (PC) Case No.2/2005 is hereby confirmed.

¶81

Sd/JUDGE

¶82

Rbv/-

State by Lokayuktha Police v. T Kotrappa

Case brief

What is this about?

What did the court decide?

State by Lokayuktha Police v. T Kotrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Compuage Infocom Ltd., Vs Sri Gunashekar

T Gunashekar Vs Compuage Infocom Ltd.

B Suma Vs v Lakshmi

H Zainuddin S/O Hassan Musaliar Vs State by Inspector of Police

Sri Ismail Vs State of Karnataka

Sri Ariff Sheik S/O Late Kudabaksh Vs State of Karnataka