Allowed

D. Basavarajayya S/O Murugayya Davanagaon v. the State through P.I., Lokayukta Ps, Yadgir

Karnataka HC18 Nov 2020CRL.A/3659/2012

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court acquitted the appellant of corruption charges. The court held that the prosecution failed to prove beyond reasonable doubt that the appellant demanded or accepted a bribe or that official work was pending with him, as key prosecution witnesses were hostile and contradicted the claim.

What did the court decide?

The judgment of conviction and sentence is set aside, the accused is acquitted, bail bond is cancelled, and any deposited fine is refunded.

D. Basavarajayya S/O Murugayya Davanagaon Vs the State through… — Corruption | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL APPEAL No.3659 OF 2012

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BETWEEN:

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D.BASAVARAJAYYA SON OF MURUGAYYA DAVANAGAON AGE: 53 YEARS OCC: FIRST DIVISION ACCOUNTS ASSISTANT IN THE OFFICE OF THE ADMINISTRATOR KRISHNA CADA, BHEEMARAYANGUDI SHAHAPUR R/O HOUSE NO.9-37 NEAR ALLAMPRABHU TEMPLE GANDHI CHOWK, SHAHAPUR DIST: GULBARGA. … APPELLANT

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(BY SRI:BABURAO MANGANE, ADVOCATE)

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AND:

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THE STATE THROUGH P.I. LOKAYUKTA P.S., YADGIR.

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… RESPONDENT

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(BY SRI:SUBHASH MALLAPUR, SPL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO ALLOW THE APPEAL AND

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TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN SPL.CASE NO.4 OF 2010 ON THE FILE OF DISTRICT AND SESSIONS JUDGE, AT YADGIR, DATED 22.09.2012 CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7 AND 13(1)(D) READ WITH 13(2) OF PREVENTION OF CORRUPTION ACT, 1988; APPELLANT-ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF FIVE YEARS AND TO PAY A FINE OF RS.20,000/- IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR ONE MORE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF PC ACT, 1988; FURTHER APPELLANTACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF FIVE YEARS AND TO PAY A FINE OF RS.20,000/- IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR ONE MORE YEAR. ALL SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY. THE APPELANT-ACCUSED PRAYS THAT HE MAY BE ACQUITTED.

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

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J U D G M E N T

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The appellant-accused has preferred this appeal aggrieved by the judgment of conviction and order of sentence dated 22.09.2012 passed in Special Case No.4 of 2010 by the learned District and Sessions Judge, Yadgiri (for short 'the Trial Court') for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act').

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Brief facts of the case are that, the accused

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was working as First Division Assistant in the office of 'Krishna Bhagya Jala Nigama Limited' (for short 'KBJNL'). It is stated that the accused being the public servant demanded the illegal gratification of Rs.5,500/- from the complainant to discharge his official duty i.e, for issuance of cheque in favour of the complainant. It is stated that the complainant had lodged the first information as per Ex.P1, upon which, Lokayukta Police registered Crime No.4 of 2007 for the above said offences. Pre-trap panchanama was drawn in the presence of two independent witnesses who were also public servants. It is the further contention of prosecution that, the complainant who is examined as PW1 approached the accused along with PW3 - shadow witness and requested him to issue the cheque. At that time, the accused again demanded illegal gratification of Rs.5,500/-. The complainant tendered the entrusted money, which was smeared with phenolphthalein powder. The accused accepted the same and thereby, he has committed the offences as stated above. On receiving the intimation, the Lokayukta Police in the presence of PW2

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came and trapped the accused. The tainted money was recovered from the accused in the presence of PWs.1 to 3 and trap panchanama was drawn as per Ex.P3. After investigation, charge sheet was filed against the accused.

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The Trial Court took cognizance of the offence

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and the accused was summoned to appear before the Trial Court. The accused pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined PWs.1 to 11, got marked Exs.P1 to P28 and identified MOs.1 to 9 in support of its contention. The accused was examined under Section 313 of Cr.P.C. and the accused denied all the incriminating materials available on record and has not chosen to lead any evidence in support of his defence.

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4. The Trial Court after taking into consideration

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of all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused and convicted him for the above said offences. Aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred this appeal on various grounds.

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Heard the learned Counsel for the appellant and the learned Special Public Prosecutor for the respondent-Lokayukta and perused the materials including the Trial Court records.

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Learned Counsel for the appellant contended that the prosecution has failed to prove the demand the acceptance of illegal gratification by the accused. It has also failed to prove that the official work was pending with the accused as on the date of incident. The first informant who has been examined as PW1, co pancha as PW2 and shadow witness as PW3, have not supported the case of the prosecution in the matter of material issues. Under such circumstances, the Trial Court could not have convicted the accused for the above said offences. He further submitted that even according to the case made out by the prosecution, accused had drawn the bill as per Ex.P6 on 28.05.2007 itself. The cheque in question was issued by the Chief Accounts Officer as per Ex.P4 which is dated 06.06.2007. The incident in question is said to have taken place on 07.06.2007 on which date, no work was

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pending with the accused. But the Trial Court proceeded to convict the accused without any basis. Hence, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence in the interest of justice.

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Per contra, the learned Special Public Prosecutor supporting the impugned judgment of conviction and order of sentence submitted that even though PWs.1 to 3 have not supported the case of the prosecution fully, they have supported the contention of the prosecution to some extent. PW1 specifically stated that the accused had demanded and accepted the bribe for showing the official favour. PW3 being the shadow witness has stated that tainted money was found in the custody of the accused and it was seized in his presence. Similarly, PW2-co-pancha has also supported the case of prosecution. Moreover, PW5 - the Accounts Officer has stated that the documents were seized from the custody of the accused. All these materials on record are sufficient to convict the accused. The Trial Court has taken into

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consideration of all these materials on record and proceeded to convict the accused. There are no illegality or perversity in the judgment of conviction and order of sentence passed by the Trial Court. Hence, he prays for dismissal of the appeal being devoid of merits.

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8. It is the contention of the prosecution that the

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accused being the First Division Assistant was entrusted with the work of drawing bill for the work that has been done by PW4 - the Contractor. When PW1 approached the accused and asked for drawing of the bill and issuance of cheque, the accused demanded illegal gratification. In this regard, the complaint as per Ex.P1 was lodged and the money was entrusted to PW1 with an instruction to meet the accused along with shadow witness and to pay the entrusted amount, if the accused demands for the bribe amount. Accordingly, PW1 along with PW3 met the accused and when the accused again demanded for illegal gratification, PW1 tendered the entrusted money to the accused and the accused accepted the tainted money. Thereafter, the Investigating Officer came to the spot

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along with PW2 - co-pancha and tainted money was recovered from the custody of the accused. The accused being public servant demanded and accepted the illegal gratification to show official favour and thereby, he has committed misconduct and is punishable for the above said offences.

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PW1 is the complainant who filed the complaint as per Ex.P1. He has specifically stated that when he met the accused on 05.06.2007, the accused had demanded Rs.5,500/- for issuance of cheque and he also informed that power of attorney deed has to be produced authorizing him to collect the cheque on behalf of PW4. Therefore, the complaint came to be lodged. In the evidence of PW1, he has stated that he had called the accused over phone, when he demanded for illegal gratification of Rs.5,500/- on 05.06.2007. He further states that when he met the accused on 06.06.2007, the accused stated that he is required to bring power of attorney from PW4 to collect the cheque. Therefore, he lodged the complaint with Lokayukta Police. The witness

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further stated that he alone had gone inside the office of the accused and the accused had demanded money and he paid Rs.5,500/which was entrusted to him. Subsequently, he gave signal to the Investigating Officer. The witness was partially treated as hostile. Learned Special Public Prosecutor cross examined this witness. During cross examination, the witness specifically stated that he cannot identify PWs.2 and 3 and denied the suggestion that he was accompanied by PW3 while meeting the accused on the date of incident. This witness further stated that he is the subcontractor under PW4, but this fact does not find a place in Ex.P1. During cross examination by the learned Counsel for the accused, the witness pleaded his ignorance that the accused had drawn the bill on 28.05.2007 itself and had sent the MB book. He admitted that on 04.06.2007 itself, the amount was released for the work that was carried out. He also admits that the amount in question was credited to State Bank of Hyderabad on 05.06.2007 itself. The witness specifically states that when he enquired with the accused, he stated that he is not concerned with the issuance of cheque.

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PW2 - the co-pancha admittedly was not

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present when the accused said to have demanded and accepted the illegal gratification. He has not fully supported the case of prosecution. During cross examination by the learned Counsel for the accused, the witness pleaded his ignorance about the documents that were seized by the Lokayukta. He specifically states that he is not aware of demand and acceptance of the illegal gratification by the accused.

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PW3 is the shadow witness. He has stated that he had not accompanied PW1 while meeting the accused. This witness specifically states that he remained with Lokayukta Police in the jeep, when the complainant went inside the office to meet the accused. This witness was treated hostile and the learned Special Public Prosecutor cross examined this witness at length. The witness has denied all the suggestions put during the cross examination. He even denied the suggestion that, he had given statement as per Exs.P14 to 16. During cross examination by the learned Counsel for the accused, the

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witness specifically admitted that he had not witnessed seizure of the tainted money from the custody of the accused. He also admits that he was not present when both the panchanams were drawn, but he is only signatory to the documents.

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PW4 is the contractor in whose favour the bill

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and the cheque were drawn. This witness has not supported the case of prosecution and during cross examination, the witness stated that PW1 is not the subcontractor and nobody demanded the bribe amount nor she paid any amount.

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PW5 is the in-charge Chief Officer of 'KBJNL'.

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The witness has stated that he has certified some of the documents which was seized by Lokayuktha Police. He identified those documents as per Exs.P4 to 6 and 18 to 20. During cross examination, the witness has stated that original documents were not in custody of the accused. The witness further stated that the cheque will be issued by the Accounts Officer and the cheque in question was issued on 06.06.2007. The witness states that Ex.P6 was

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forwarded to the Accounts Officer on 25.08.2007 and the cheque in question bears signature of Accounts Superintendent and Chief Accounts Officer.

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If these materials on record are taken into consideration, there is absolutely no material to contend that the accused either demanded or accepted the bribe amount. PW3 being the shadow witness has not chosen to support the case of prosecution. Even during the cross examination by the Special Public Prosecutor, nothing has been elicited from him. Even though PW1 has partly supported the case of the prosecution, same is not sufficient as PW1 is not the contractor to whom the cheque in question has to be issued. Admittedly, the cheque in question as per Ex.P4 was drawn in favour of P.K.Indi who is examined as PW4. She has not supported the case of prosecution to any extent. Similarly, EX.P6 is admittedly prepared by the accused and it is dated 28.05.2007. PW5 the material witness to the prosecution specifically states that Ex.P6 was forwarded to the Accounts Officer on the same day i.e., 28.05.2007. He also states that it is the

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Accounts Officer who issues the cheque. Therefore, as on the date of the incident i.e., 07.06.2007, no work was shown to have been pending with the accused and the only work that was entrusted to the accused is preparing of the bill which is as per Ex.P6 and the same was prepared on 28.05.2007 and forwarded to the Accounts Officer for issuance of cheque as per Ex.P4. The cheque in question was issued by the Chief Accounts Officer on 06.06.2007 i.e., on the previous date of registering the FIR.

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It is to be noted that PW5 specifically states that the accused was not in possession of those documents. But the learned Special Public Prosecutor before the Trial Court has not chosen to further cross examine the witness in this regard. It is pertinent to note that the prosecution has not elicited from this witness that those documents were seized from the custody of the accused. Under such circumstances, the prosecution has failed to prove either demand or acceptance or seizure of original documents form the custody of the accused. When the prosecution has failed to prove the demand and

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acceptance of illegal gratification and also pendency of official work with the accused, it cannot be said that the prosecution is successful in proving the guilt of the accused for the above said offences. Hence, I am of the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court has relied on the evidence of PW8 - Head Constable and PW11 - the Investigating Officer to convict the accused. When the independent witnesses including the complainant have not supported the case of the prosecution and when the prosecution has failed to prove that the accused was in custody of the relevant documents, conviction of the accused cannot be based only on the evidence of Investigating Officer by ignoring the evidence of PWs.1 to 3 and 5. Admittedly, either PW8 or PW11 were not the witnesses either to the demand or for acceptance of the illegal gratification by the accused.

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Therefore, I am of the opinion that the appeal deserves to the allowed.

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17. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed. The judgment of conviction and order of sentence dated 22.09.2012 passed in Special Case No.4 of 2010 by the learned District and Sessions Judge, Yadgiri, is set aside.

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The accused is acquitted of the charges framed against him.

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Bail bond of the accused and that of his sureties

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stand cancelled.

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The fine amount, if any, deposited by the accused is

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ordered to be refunded to him on due identification.

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Send back the trial court records along with copy of

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judgment.

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*bgn/-

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Sd/JUDGE

D. Basavarajayya S/O Murugayya Davanagaon v. the State through P.I., Lokayukta Ps, Yadgir

Case brief

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D. Basavarajayya S/O Murugayya Davanagaon v. the State through P.I., Lokayukta Ps, Yadgir

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