Partly allowed

Basavanappa S/O Sangappa Halbarge v. the State of Karnataka

Karnataka HC8 Dec 2017CRL.A/3764/2010

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for bribery under the Prevention of Corruption Act, the High Court confirmed the conviction despite the main witness turning hostile. The court rejected the argument that hostility alone negates the prosecution case, relying instead on corroborative circumstances. The imposed sentence was reduced due to pre-amendment quantum. The court held that conviction d

What did the court decide?

The appeal allowed in part; conviction confirmed but order of sentence modified; 3 years rigorous imprisonment reduced to 1 year for the charge under Section 7, and 2 years reduced to 1 year for the c

Basavanappa S/O Sangappa Halbarge Vs the State of Karnataka — Corruption | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 8^TH DAY OF DECEMBER 2017

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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CRIMINAL APPEAL No.3764/2010

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BETWEEN:

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BASAVANAPPA S/O SANGAPPA HALBARGE SINCE DECEASED BY HIS LRS SANJEEVKUMAR S/O BASAVANAPPA HALBARGE AGE: 35 YEARS OCC: UNEMPLOYED R/O: HEDGAPUR TQ: AURAD DIST: BIDAR. …Appellant

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(BY SRI.AMEETKUMAR DESHPANDE, ADVOCATE) AND:

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THE STATE OF KARNATAKA THROUGH POLICE LOKAYUKTA POLICE STATION BIDAR, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR BIDAR.

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…RESPONDENT (BY SRI.PRASHANT.S.KUMMAN, HCGP.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF THE CR.P.C. PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 15.11.2010 PASSED BY THE PRINCIPAL SESSIONS JUDGE AT BIDAR IN SPECIAL (CORRUPTION) CASE NO.1 OF 2008.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the judgment convicting the appellant and order of sentence passed on 15.11.2010 by the learned Special Judge and Prl. Sessions Judge, Bidar, in Special (Corruption) Case No.1/2008 for the offence punishable under Sections 7 and 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act.

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The facts unfurled from the complaint are that, the complainant Gundappa s/o Venkappa lodged complaint on 23.11.2006 with the Lokayutkh Police Bidar alleging that the accused who was working as

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Second Division Assistant in Survey Settlement Office, Aurad, demanded a bribe of Rs.1,200/- in respect of transferring records of the land bearing Sy.No.33/1-B and Sy.No.33/3-B totally measuring 05 acres 19 guntas in his name and in the name of his mother due to the death of his father. It is stated that the complainant had given application to the Tahasildar Aurad (B) on 16.10.2006 and paid fee of Rs.806/-. After coming to know about his file being sent to the office of Survey, on 13.11.2006, the complainant went to that office and on enquiry with the accused, he demanded the bribe of Rs.1,200/- for making survey of the land. Though the complainant was not willing to pay bribe, however, he told the accused that he has only Rs.500/- for which the accused asked the complainant to give Rs.500/now and give the remaining amount of Rs.700/- after 2- 3 days. Though the complainant was not intending to pay bribe, has paid Rs.500/- to the accused and telling the accused that he will arrange remaining amount,

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thought of lodging complaint to the Lokayukth Police. Accordingly, lodged the complaint. On the basis of the complaint the Lokayukth Police have registered a case in Cime.No.8/2006 for the offence punishable under Sections 7 and 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988.

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Thereafter, the Lokayukth Police secured the two independent panch witnesses, informed them about the complaint and on production of currency notes by the complainant, after applying phenolphthalein powder to the currency notes entrustment Mahazar was conducted. The procedures to be followed were explained to the complainant and panch witnesses. Thereafter, conducted trap on the accused and recovered tented money from the possession of the accused under the seizure panchanama. After completion of investigation final report was filed against the accused for the above said offences.

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The Special Judge/ Special Court established under Section 3 of the Prevention of Corruption Act 1988, heard on framing of charge against the accused for the offence punishable under Sections 7 and 13(1) (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. The accused denied the charges leveled against him and claimed to be tried. Therefore, the accused was put on trial.

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The prosecution in order to establish its case has examined in all 7 witnesses, produced documents Ex.P.1 to P.24 and got marked material objects as M.Os.No.1 to 10. The accused was examined under Section 313 of Cr.P.C. wherein the accused denied the incriminating evidence appearing in the prosecution witnesses and the defense of the accused was one of total denial. The accused has not let in any defense evidence on his behalf.

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6. After hearing the learned Special Public

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Prosecutor for the State and the learned counsel appearing for the accused and also appreciating the oral and documentary evidence on record, the learned Special Judge came to the conclusion that the prosecution has proved its case beyond all reasonable doubt against the accused. Accordingly, the Special Judge convicted the accused and sentenced him to undergo rigorous imprisonment for a period of 03 years and fine of Rs.3,000/-, in default, to undergo simple imprisonment for six months for the offence punishable Section 7 of the Prevention of Corruption Act, 1988 and the accused was further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for four months for the offence 13(1) (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.

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In order to establish the commission of the offence charged against the accused, the prosecution examined P.Ws.1 to 7 and got marked documents as per Exs.P1 to P.24.

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I have heard the learned counsel for the appellant

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and the learned High Court Government Pleader for the State.

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The learned counsel Sri.Ameetkumar Deshpande, would submit that the complainant's version during evidence would suggest by itself that there was no necessity of trap proceedings and as there was neither demand nor acceptance of money or any other valuable things by the accused from the complainant.

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The complainant who is the sole material evidence

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in the proceedings conducted under the provisions of Prevention of Corruption Act turned hostile and did not support the prosecution. Thus, the entire terms of the

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complaint and the proceedings do not stand the questions of reasoning. The learned counsel would further submit that the prosecution cannot consider PW.1, the complainant as a witness as on behalf for establishing the offence, as he does not explain anything incriminating against the accused, even as a person who has the knowledge of the activities, nature of the documents, but he fails. Learned counsel would further submit that the practical aspect to be considered is the version in substance, not by the person who is regular witness or hostile witness.

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He would further submit that the crux of the substance of the evidence of the complainant is that there is no evidence from the side of the complainant.

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The complainant Gundappa is examined as PW.1.

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In his evidence before the court he reiterates the contents of complaint and identifies the complaint filed by him which is marked as Ex.P.1. Thus, confirms the

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claim of the prosecution and the complaint against the accused. However, takes an absolute “U” turn during his cross-examination. During cross-examination he just nods his head and accepts almost all questions posed by the learned counsel for the accused. Thus, what was done in the chief, was undone in the cross. He was declared hostile and during cross-examination by the learned Special Public Prosecutor he does not speak version controlled to that of prosecution. Incidentally, a person by name Satish was relied on by the accused, as he starts attributing almost all acts in the process to Mr.Satish who did not figure according to prosecution at any stage during the proceedings on the date of trap.

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Insofar as the trap is concerned, it was not conduct on the date of complaint, it was postponed to next day due to paucity of time. Even for the questions regarding versions of changing certain events and facts, the complainant would answer that what he told during

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chief examination, was not right and what was told at the time of cross examination by the Public Prosecutor was not right. To a court question as to whether he was in know of the truth, he responds that he was confused and for a next court question as to what was the incident that caused confusion, he says that the fact was that he has a childhood friend by name Satish who told him just to follow his advises, he would get back the agricultural land to the complainant and further states how Satish and complainant became friends, he responds that both of them are RSS workers.

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PW.2 Anilraj who is an independent panch witness narrates regarding the entrustment Mahazar held in the office of Lokayukth on 23.11.2006. He deposes regarding smearing of phenolphthalein powder on currency notes and other instructions regarding payment of bribe amount to the accused only in case of demand and the duties to be followed by this witness

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which included the following of the complainant and observing the activities and the possession given to the complainant to the effect that the amount should be paid only in case of demand and pass on the signal by wiping the face with kerchief. He also deposes regarding the activities that occurred in the office of the accused Gundappa. According to this witness the complainant went to the accused and enquired about his work. He identified the accused having seen on the date of incident. He also deposes that the accused told the complainant to have tea and accordingly, they went to Sairam Tiffin Center and when they were having tea the complainant again asked the accused regarding the job and the accused said whether the complainant had brought money and the complainant said yes and took out Rs.700/- from his pocket and gave it to accused who counted the currency notes and kept it in the rear pocket of his pant, by that time the complainant gave signal to the Lokayukth police who were watching

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outside. Thereafter trap proceedings were conducted. The hands of the accused were dipped into sodium carbonate solution which turned to light pink colour and seizure of tainted money from the possession of the accused. He also states that on questioning the accused about the possession of the money the accused gave explanation that the said money was given by somebody. However, complainant stated that it was false and the statement of the accused was received. The pant of the accused was asked to be removed by providing alternative pant and the portion of the cloth covered for pocket was quashed in sodium carbonate solution the water turned to pink colour. The said pant was seized and sealed in a cover. He also states about seizing of some documents relating to the file of complainant and conducting of seizure panchanama Ex.P.11 and snapping of photos.

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15. Insofar as the evidence of PW.3 Chidambar

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Praveenkumar is concerned he speaks about the incidents, regarding the complaint being lodged by the complainant, instructions given by the Lokayukt Police, conducting of entrustment Mahazar. Smearing of phenolphthalein powder to the currency notes produced by the complainant, explaining the chemical reaction on mixing phenolphthalein powder, conducting trap on the accused and seizure of tainted currency notes from the possession of the accused.

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PW.4 Balawant was examined in respect of the formalities being conducting in the office of the surveyor on the date of incident and the police seizing relevant registers and documents from the office of the accused, they are marked as Ex.P.13.

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PW.5 Rajiv Chawla the then Commissioner of Land Survey Department, Bangalore, who was the competent authority has stated about according

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sanction to prosecute the accused for the offence punishable under Sections 7 and 13(1) (d) of the Prevention of Corruption Act, 1988, as the sanction to prosecute the accused is necessary under Section 19 of the P.C. Act. The sanction order issued by this witness is marked as Ex.P.20. The witness identifies his signature on the sanction order at Ex.P.20(a).

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PW.6 Rukminibai is the mother of the

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complainant. She was examined to make mention of the work that was required to be attended by the accused. This witness turned hostile and did not support the version of the prosecution.

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PW.7 Suryakant, the then Head Constable of Lokayukta Police Station, Bidar states for having assisted the I.O. in conducting entrustment Mahazar and Trap proceedings.

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As the complainant turned hostile, he was cross-

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examined by the learned public prosecutor as well. Insofar as the other witnesses are concerned, in depth cross-examination was conducted by the learned Counsel for the accused. In the cross-examination no special factors or concepts or incidents are brought out through contradictions, omissions and improvements.

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Here the accused is a public servant working as S.D.A. in survey office and the job that was required by the accused to e done was transmission of Khata of the properties bearing Sy.No.33/1B measuring 02 acres 14 guntas and Sy.No.33/3B measuring 03 acres 05 guntas to the names of complainant and his mother PW.6. There was no reason for the complainant to go to Lokayukth Office, writing a complaint against the accused, bringing it before the Lokayukth Police and signing the complaint by the complainant and not giving any explanation or giving false explanation or the

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answers that are not acceptable to the respective questions. Answer also becomes not acceptable when the person who answers knows the right answer, but does not give it. Thus, not answering or false the answering, stand on a similar pedestal. At the same time the complainant who support prosecution and in his wisdom takes 'U' turn and upon being asked by the learned trial judge to a court question he would answer that he got confused. This answer is necessary to be analyzed from one more angle. Straightaway giving false answer despite knowing right one may go unnoticed for the purpose of Section 340 of Cr.P.C. However, answer in a particular answer during the examination in chief and diagonally opposite during the cross examination has to be watched meticulously as to whether does that forms offence, as both the version during chief examination and cross examination or on oath. Thus, responsibility or liability of a person who gives evidence on oath diagonally opposite version and on being asked

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the reason for such contrary stand, he explains that he was confused.

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Thus running a criminal trial if a witness including the complainant or others, it is not a thumb rule that on a witness denying the contents of a document including the statement made by him under Section 161 of Cr.P.C. then invariably to be concluded as not proved or false. On the other hand, when there are stronger evidence of circumstances which convey inference against the hostile version of the complainant. There is no reason as to why all the material circumstances and documents are to be eschewed and only the version of the complainant alone to be chewed and the said factors are to be eschewed. On the other hand, the version of the complainant is one of the factors among available factors, more particularly in a case coming under the Prevention of Corruption Act cheating, misappropriation and the related. What is

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conclusively determinable from all the relevant

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circumstances and the material need not be ignored at the instance of the complainant. On oath against oath probability is that, what is established in the circumstances not the version of the complainant rather he does not hold patent or copyright of the evidence. Hostility is not the factor or version which is given against the statement or the version in the complaint. On the other hand, when the witness knows the truth and the finding of the Court on that particular point synchronizes but the witness deliberately assails from truth.

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The concept of hostility of a witness has no doubt reflects the first version that he does not support the prosecution on a particular side. Hostile literally assailing or going against in the matter of witness if he goes who speaks or acts against a particular version which he stood for when the time the incident,

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document or circumstance came or made known, he turned as hostile.

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The Court takes cognizance of the offence and not the offender. The accused wants an order of acquittal, the prosecution wants conviction and the respective results may be justice to respective parties. However, insofar as the court is concerned, justice according to law is the end. Thus, irrespective of the aspirations of the complainant or the accused, the court when it comes to a finding that particular state of affairs was a true and evidenced by the version of the witnesses besides documents, records, statements, material objects, opinions so on and so far in a reliable and believable. In the said circumstances, it is to be seen that in the case the complaint lodged by Gundappa s/o Yankappa Choudekar (Ex.P.1), Entrustment Mahazar, evidence of the complainant as a whole, evidence of PW.2 and 3. It was submitted that the Investigating

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Officer in the matter is dead. He was not examined. Non examination of Investigating Officer does not left fatal impact on the case. In the context of circumstances, the prosecution beyond reasonable doubt has established that the accused has demanded the bribe of Rs.700/from the complainant and the former being a public servant for carrying out duty, after having demanded the bribe, received the tainted money and was got redhanded by Lokayuktha Police of Bidar and thereby he has committed the offences punishable under Sections 7 and 13(1)(d) R/w 13(2) of Prevention of Corruption Act. In the peculiar facts and circumstances the case, the accused who was convicted is reported as dead. The case, in the normal circumstances would have been closed as abated. But in this case, the legal heirs of the accused perhaps wanted the case to be continued from the side of the accused to take it till the end. Thus, appreciating their stand, the matter was continued.

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It is also stated that the accused being a public servant is also having legal heirs in the form of son. It can never be said for a whole children of accused and wife have stigma. In this connection upon the death of

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the accused pending disposal of the appeal on 11.10.2014 was not allowed to get abated, but the proceedings continued.

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It is seen that the date of commission of offence is 24.11.2006. The punishment inflicted by the trial court is 03 years rigorous imprisonment for the offence punishable under Section 7 of Prevention of Corruption Act. Prior to the amendment of Prevention of Corruption Act the punishment provided for the offence under Section 7 was punishable with imprisonment it shall not be less than 06 months but which may extend to 05 years and shall also be liable to fine.

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Now after the amendment of the Act, the minimum punishment for the offence under Section 7 of the Act,

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is not less than three years and the maximum is seven years. However, the amendment to Prevention of Corruption Act has increased the minimum punishment

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which is as under:-

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Public servant taking gratification other than legal remuneration in respect of an official act – Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be

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punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.

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At the same time punishment provided for the offence under Section 13(1)(d) which is punishable under Section 13(2) of the Act, as amended with effect

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from 01.01.2014, is as under:

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Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,—

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(d) if he,—

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

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The date of commission of the offence is

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13.11.2006 prior to amendment of the Act in the year

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Punishment that was provided for Section 7 and 13 of the Act are as under:

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Sec. 7 - Public servant taking gratification other than legal remuneration in respect of an official act.— Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

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Sec. 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

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As the criminal legislation or amendment to it can not

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have retrospective effect. Thus, sentencing should have been effected in accordance with unamended Act.

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In the context and circumstances the sentence

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passed by the learned trial judge appear to be on higher

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side. As the accused is dead, the liability is not transferred on any one.

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The learned counsel for the appellant would submit that the appellants include son of the accused. The appellants who have lost the company of their bread winner are seeking compassionate employment to the son for eking out livelihood. It is to be seen that even this court might have held the deceased accused liable for the offence stated above, but no clout would be covered on his legal heirs. The compassionate employment may not be considered from the angle of the deceased public servant, but as the phrase provides on the dependant as a compassion.

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In the circumstances, insofar as the affecting of the order of the Court is concerned on the compassionate employment, it is necessary to mention Rule-3 of the Karnataka Civil Services (Appointment on

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Compassionate Grounds) Rules, 1996, provides as

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under:-

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3. Eligibility for appointment-

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1. Appointment on compassionate grounds under these rules shall not be claimed as a matter of right and shall not be given as a matter of course.

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1. Appointment under these rules shall be restricted to the dependent of a deceased Government servant in the following order of preference, namely –

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(i) in the case of the deceased male Government servant –

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(a) the widow;

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(b) a son, if widow is not eligible or for any

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valid reason she is not willing to accept the appointment,

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(c) an unmarried daughter, if the widow and son are not eligible or for any valid reason they are not willing to accept the appointment;

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(d) a widowed daughter, if the widow, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.

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(ii) in the case of the deceased female Government servant;

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(a) a son;

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(b) an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment,

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(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.

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(3) An adopted son or daughter of a deceased Government servant shall not be eligible for appointment under these rules.

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More particularly, the disqualification thus

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provides in Sub-Rule (4) of Rule-3 is as under:-

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“A person against whom at the time of making application a criminal case is under investigation or trial, on the charge of having committed murder of the deceased government servant or for abating commission of such offence shall not be eligible for appointment under these rules”

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In this connection the report of the death of the appellant is a natural one and no cases were registered against anybody. In the circumstances, it is made clear that conviction or sentence passed by the Court for the offence like the present one does not come within the purview of Sub-Rule (4) of Rule-3 of Karnataka Civil Services (Appointment of Compassionate Grounds) Rules, 1996, shall not have exclusive negative effect.

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In the result, I proceed to pass the following...

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ORDER

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The appeal is partly allowed. The judgment convicting the appellant/accused for the offence under Sections 7 and 13(1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 is confirmed. However, the order of sentence is modified as under;

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The appellant – accused is sentenced to undergo rigorous imprisonment for a period of one

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year for the offence punishable under Section 7 of the Prevention of Corruption Act and pay a fine of Rs.3,000/- in default, to undergo further simple imprisonment for six months.

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Further the appellant sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.2,000/- in default, to undergo further simple imprisonment for four months for the offence under Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act.

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Send a copy of this judgment along with records to the trial court forthwith.

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Sd/JUDGE

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NSP/KJJ

Basavanappa S/O Sangappa Halbarge v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Basavanappa S/O Sangappa Halbarge v. the State of Karnataka

Case brief

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What the court decided

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