Allowed

Ramappa S/O Yellappa Amminbhavi v. State of Karnataka

Karnataka HC20 Feb 2021CRL.A/2612/2010

Case brief

AI extract

What is this about?

Criminal appeal against conviction under the Prevention of Corruption Act for accepting a bribe from a person running a timber depot on corporation land. The court found material contradictions between the complainant and the shadow witness on demand, held the accused's explanation that he received part payment of tax arrears probable, gave him the benefit of doubt and acquitted him.

What did the court decide?

Appeal allowed; judgment of conviction and sentence dated 31.03.2010 set aside; accused acquitted of offences under Section 7 and 13(1)(d)(i) read with 13(2) of the Prevention of Corruption Act, 1988;

Ramappa S/O Yellappa Amminbhavi Vs State of Karnataka — Corruption | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL APPEAL NO.2612/2010

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BETWEEN:

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RAMAPPA S/O YELLAPPA AMMINBHAVI AGE: 55 YEARS, OCC: WARRANT OFFICER R/O HUBLI-DHARWAD MUNICIPAL CORPORATION OFFICE NO.9, HUBLI

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...APPELLANT

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(BY SRI. SHANKAR P HEGDE : MOHANKUMAR M, ADVOCATES)

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AND:

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STATE OF KARNATAKA (LOKAYUKTA) R/BY LOKAYUKTA PROSECUTOR, CIRCUIT BENCH HIGH COURT, DHARWAD. (LOKAYUKTA POLICE, DHARWAD)

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…RESPONDENT

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(BY SRI. GURUDEV I. GACHCHINAMATH, SPL. PP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 31.3.2010 PASSED BY THE PRESIDING OFFICER, III ADDL. DISTRICT AND SESSIONS AND SPECIAL JUDGE, DHARWAD IN SPL.K.L.A. C.C.NO.3/06 AND ACQUIT THE APPELLANT OF THE CHARGES LEVIED AGAINST THE APPELLANT.

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

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JUDGMENT

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This appeal is filed by the appellant/accused under Section 374 Cr.P.C. for setting aside the judgment of conviction and sentence passed by the III Addl. District and Sessions Judge, Dharwad (hereinafter referred to as ‘the trial Court’, for brevity) in Special K.L.A. CC No.3/2006, for having found the accused guilty of the offence punishable under Section 7 and 13(1)(d)(i) R/w. Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’, for brevity) by convicting and sentencing him to undergo simple imprisonment for six months and to pay fine of 2,000/- and in default of payment of fine, to undergo simple imprisonment for one month for the offence under Section 7 of the P.C. Act and also sentenced to undergo simple imprisonment for one year and to pay fine of 3,000/- and in default of payment of fine, to undergo simple imprisonment for two months for the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act.

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Heard the arguments of learned counsel for the appellant Sri. Shankar P. Hegde and learned Special Public Prosecutor for the respondent – Lokayukta Sri. Gurudev I. Gachchinamath,.

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The case of the prosecution is that, the Lokayukta Police filed the charge sheet against the accused for the above said offences alleging that the accused Ramappa Amminabhavi is said to be a Warrant Officer working in Hubli-Dharwad Municipal Corporation, Hubballi and the complainant PW1 – Vasappa Ankushkhani was running a timber depot in the plots belonging to the Corporation and earlier the said plots were granted in favour of Mansoor Gunari and G. I.Bochageri. About 22 years ago PW1 came in possession of the said plots and he was paying corporation tax continuously up to date. In spite of the said fact, PW1 came to know that there were some arrears of corporation tax. Hence PW1 met the accused and enquired about the arrears of tax. The accused said to have told him that an amount of 21,189/- was in arrears as corporation tax and he would reduce the arrears of tax by 10,000/- if PW1 paid bribe of `5,000/-. The complainant was not willing to pay the bribe amount and hence he lodged the

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complaint with the Lokayukta Police on 17.11.2005 as per Ex.P1. After registering the case, FIR has been issued by the I.O., they prepared the pre-trap panchanama and demonstration was given to the complainant as well as to the panch witnesses and shadow witnesses. Accordingly, trap was arranged. On 17.11.2005, the complainant - PW1 went inside the office of the accused. The accused was not present in the office. Later he came after attending the meeting and demanded the complainant whether he has brought the bribe amount. Accordingly, PW1 has paid him the tainted amount and the accused demanded and accepted `5,000/as bribe. Immediately as per the pre arranged plan, the complainant given the signal by wiping his face with the handkerchief. Immediately PW4 and the members of the raiding party went inside the office of the accused and apprehended the accused. They asked the explanation of the accused. The accused has offered explanation that he has not received any bribe amount, but he has received money towards the part payment of tax at the request of the complainant. The explanation was not accepted and also denied by PWs. 1 and 2. Accordingly, the accused was arrested. The hand wash of the accused was taken. The sodium

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carbonate solution turned to pink colour. Thus, the accused was trapped. Accused was taken to custody and remanded to judicial custody. Thereafter the I.O. completed the remaining formalities of recording of statements of concerned witnesses and obtaining the sanction order. After completion of investigation, the I.O. filed the charge sheet.

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After receipt of the charge sheet, the trial Court took cognizance and issued summons to the accused. The accused appeared before the Court and was released on bail. After hearing the counsel for the accused and the Special Public Prosecutor, the charges were read over to the accused for the aforesaid offences. The accused denied the charges and claimed to be tried. Accordingly, the prosecution to prove its case examined five witnesses PWs.1 to 5 and got marked 42 documents and 18 material objects. After concluding the evidence, the statement of the accused under Section 313 Cr.P.C. has been recorded and the incriminating evidence adduced against the accused has been read over to the accused. The case of the accused was one of total denial and he has taken the contention in the cross-examination that, he has accepted the money, not as a bribe but as a part

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payment of collection of tax and he has also given reply statement under Section 313 (5) of Cr.P.C. However, he has not entered into witness box. After hearing the arguments the trial Court found the accused guilty and sentenced him to undergo imprisonment as stated supra. Assailing the same, the accused is before this Court.

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Learned counsel for the appellant/accused Sri. Shankar P. Hegde contended that the judgment of the trial Court is not sustainable. The trial Court committed error since from the time of framing of charge and also accepting the evidence of PWs. 1 and 2. The trial Court has not properly appreciated the evidence on record and the defence taken by the accused in the cross-examination as well as under 313 statement. The accused has offered explanation before the I.O. immediately after the trap as per Ex.P14. From the beginning he has agitated that he has received the money as collection of taxe, but not as bribe and even otherwise, the notice issued by the accused is for remaining taxes of 21,189/-. The complainant himself has produced in the Xerox copies of the bank challans for having paid 6,000/- and odd as part payment towards the tax. If the accused demanded `5,000/- there will be no benefit to the complainant, as the accused is said to have asked the

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complainant to pay another 10,000/- as assessment and total amount comes to 21,000/- and odd. Therefore, the question of paying 5,000/- to the accused as bribe does not arise and notice was issued by the accused by giving three days time which was expiring on 17.11.2005. In order to avoid the attachment order going to be done by the accused, the complainant forcibly paid 5,000/- and falsely implicated the accused by trapping. Even the accused has not entered into witness box, but has given explanation as per Ex.P4 and reply statement under Section 313(5) Cr.P.C. and he need not enter into witness box.

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In support of his argument, learned counsel relied upon the judgments of the Hon’ble Supreme Court as well as the coordinate bench of this Court. Learned counsel also contended that, regarding conversation between accused and the complainant said to have been recorded by the complainant under the audio cassette - M.O.1 and as per the observation made by the trial Court in the evidence of PW1, it clearly shows the cassette is not audible and purposely the complainant in collusion with the I.O. falsely implicated the accused and there is no evidence to show that accused demanded and accepted bribe of `5,000/-. It is further

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contended that there is contradiction between the evidence of PWs. 1 and 2 and the trap witnesses in respect of conversation held between the accused and complainant prior to the trap. Even otherwise, as per the evidence of PW1, he alone went inside the office of the accused and PW2 did not go along with PW1 inside the office and he stayed outside the office room. PW2 says he went inside the office room and stayed away 3½ meter from PW1 as per the sketch P7. It all together differs where it shows PWs. 1 and 2 were inside the office room. Therefore, there is material contradiction in respect of the evidence of PWs. 1 and 2 and Ex.P7. Therefore, the evidence of prosecution witnesses is not sufficient to prove the guilt of the accused. Further learned counsel contended that the accused is empowered to collect the tax money by part payment and the complainant has insisted the accused to receive the money and to deposit to the bank by next day as he was not able to go to bank. At the request of the accused, the amount has been accepted by the accused. The learned counsel further submits that the accused was empowered to demand and receive the tax amount. Accordingly, he has accepted it. Therefore, it cannot be considered as bribe and the Investigating Officer has

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also not examined the other two officials present in the same room of the office of the accused and not collected any other materials which were admitted by him in the cross-examination. Therefore, he prayed for allowing the appeal by acquitting the accused.

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Per contra, learned Special Public Prosecutor Sri. G. I. Gachchinamath supported the judgment of the trial Court and contended that the evidence of PWs.1 and 2 corroborate with each other where the accused demanded bribe for 5,000/- in order to reduce the tax amount form 21,189/- to `10,000/-and there is no need for him to accept that cash as it has to be deposited to the bank by the tax payer. Such being the case, accepting the money or cash by the accused is nothing but bribe and the accused has demanded and accepted the bribe in order to do favourism to the complainant, which amounts to illegal gratification. Immediately after the trap, the accused gave explanation by himself that he has no authority to receive the cash and the cash has to be deposited to the bank. In spite of it, he received the cash and therefore, his explanation cannot be accepted and there is no procedure for receiving the cash by the accused in the office. Learned Special Public Prosecutor further contended that the trial Court has

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categorically prepared three points regarding demand, acceptance and recovery for consideration and those points have been proved before the trial Court. The official work is pending with the accused and therefore, acceptance of 5,000/- amounts to bribe amount. PWs. 1 and 2 have clearly supported the case of the prosecution and Ex.P1 corroborates with the evidence of PW1 and he has no authority to receive or accept any amount in part and he would not have received any tax amount which goes to show that the accused has accepted 5,000/- in order to reduce the tax amount from 21,189/- to 10,000/- and hence contended that there is no illegality committed by the trial Court for finding the accused guilty and convicting him for the alleged offence. Hence he prayed for dismissal of the appeal.

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Upon hearing the arguments and perusal of the records, the point that arises for my consideration is:

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“Whether the judgment of conviction and sentence passed by the trial Court holding the guilty of the accused for demand and acceptance of bribe under Section 7 r/w. Section 13(1)(d) 13(2)(e) of the P.C. Act is not legal and call for interference?

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This court being the first appellate Court is required to re-appreciate the evidence on record. As stated above, the prosecution to prove the case in all examined 5 witnesses and got marked 42 documents and 18 material objects. PW.1 is the complainant, PW2 is the shadow witness, PW3 is the constable, who carried the FIR to the Court. PW4 is the Investigating Officer, PW5 is the Commissioner of HDMC, who is the sanctioning authority and who issued the sanction order as per Ex.P21. All the witnesses have supported the case of the prosecution.

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Ex.P1 is the complaint, ExP2 is the trap panchanama, Ex.P3 is the entrustment panchanama or pre-trap panchanama, Ex.P4 is the explanation offered by the accused, Exs.P8 and P9 are the tax notice issued by the HDMC to the owner of the property, Ex.P10 is the tax arrears statement of HDMC, Ex.P12 is FIR, Ex.P19 is the map and Ex.P21 is the sanction order. M.O.1 is the mini cassette, M.O.2 is the pant of accused, M.O.3 is right hand wash of the accused, M.O.4 is the left hand wash of the accused, M.O.5 is tainted currency notes, M.O. 6 is cover, M.O.s. 7 and 8 are hand wash of CW2, M.Os.9 and 10 are samples of sodium carbonate powder, M.Os. 11 and 2 are samples of phenolphthalein

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powder, M.Os. 13 and 14 are samples of distilled water, M.Os. 15 and 16 are samples of sodium carbonate solution, M.O. 17 is second sample of right hand wash of the accused and M.O. 18 is the second sample of left hand wash of the accused.

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On perusal of the entire documents, except Ex.P1 - complaint, Ex.P2 - trap panchanama, Ex.P4 - explanation offered by the accused, Exs.P8 and P9 – Tax notice of HDMC, Ex.P10 – Tax arrears statement of HDMC and Ex.P19 - Map, the remaining documents were not seriously disputed by the accused. Except M.O.1 other material objects are not seriously disputed by the accused. In fact that the accused admitted receipt of the cash from the complainant on the day of incident and it is worth to discuss some of the admitted facts in this case. It is not in dispute that the accused was a Warrant Officer working in HDMC and the HDMC Issued notices to the owner of the property as per Exs.P8 and P9 demanding total tax of `21,189/- by giving three days time till 17.11.2005 and the notice was issued on 14.11.2005. It is also not in dispute that the complainant is said to have running the timber depot namely Shrikant Timber Depot in the said property in question and he is the tenant and not the owner. It is also not in

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dispute that on 17.11.2005, PW1 gave cash of `5,000/- - M.O.5 to

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the accused and the accused accepted the same, which was recovered by the I.O. in the presence of panchas under the Trap Panchanama - Ex.P2. These admitted facts shows that the accused accepted cash of `5,000/- from PW1, whether it is the bribe amount or the tax amount collected by him in view of issuance of demand notice Exs.P7 and P8, as argued by the learned counsel whether the accused is having authority to receive any part payment by way of cash as a warranting officer or as argued by the learned Special Counsel that accused has no authority to receive or accept any cash towards the tax and it has to be deposited in the bank by the tax payer. On these admitted facts and disputed facts, now coming to the evidence of PW5 - sanctioning authority who issued the sanction order as per Ex.P21, which is also not disputed by the accused.

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PW-1, Vasappa Ankushkhani who is the complainant has deposed that he has approached the accused in respect of paying the tax and the accused told him that the tax is more than 20,000/- and if he gave 5,000/- to the accused, he would reduce the tax amount to `10,000/-. The complainant was not willing to

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pay the bribe and he went to the Lokayukta Police on the next day and gave a written complaint and he identified the same. In the cross-examination, the complainant stated that he, along with pancha witnesses and P.I. Lokayukta Police went to Corporation Office Zone No.9. The complainant alone went inside the office of the accused. CW-2 and CW-3 waited outside. Accused asked the complainant as to whether the complainant had brought the amount. The complainant asked the accused as to why the amount was required. The accused told the complainant that he would do the complainant’s work if and only the amount was paid. Hence, the complainant paid 5,000/- consisting 10 currency notes of 500/- each to the accused. The accused counted the said amount and kept it in his pant pocket. The accused, on enquiry about the work, told the complainant to come on the next day for receiving the assessment order. The said amount was kept in a cover and given to the complainant in Lokayukta office. Chemical was applied to the said notes. Thereafter, the complainant stood up and gave signal by wiping his face with handkerchief as instructed in the Lokayukta office. The complainant had provided a tape recorder to record the conversation between the accused and

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complainant. On giving signal, the P.I., Lokayukta Police, his staff, PW-2 and CW-3 came inside the office. The P.I. asked PW-1 whether he had given money to the accused and he answered in the affirmative. Hence, P.I. checked the pant pockets of the accused. He found `5,000/- in his pant pocket. Thereafter the accused was asked to dip his fingers in a sodium carbonate solution and he dipped his fingers into solution and it turned to pink color.

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PW-2 has stated in his evidence on the date of incident that at 6.45 p.m. he was waiting near the doors of the office of the accused. The complainant went inside and met him. The distance between him and CW-1 was about 1½ meters. He was able to see CW-1 and accused and hear the conversation. The complainant asked the accused about his work regarding deduction of tax. Accused asked CW-1 as to whether he had brought the bribe amount of 5,000/- and CW-1 answered in affirmative and gave the said amount of 5,000/- to the accused. The accused kept it in his left side of the pocket. Thereafter signal was given by the complainant by wiping his face with handkerchief and the accused was stabbed by the Lokayukta Police. Both the witnesses were

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stated that when the Lokayukta Police asked the accused for what purpose he has received the amount, the accused replied that he has collected the said amount towards arrears of tax payable by the complainant in respect of notice issued as per Exs.P-8 and P-9.

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The evidence of PW-1 and PW-2 are impeached in the cross-examination and PW-1 admitted that as per Ex.P-10, the register maintained by the HDMC, the arrears of tax was almost from 2002-2005 i.e., the arrears of 4,814/- for the year 20022003, 1,303/- for the year 2003-2004 and 2,006/- for the year 2004-2005. The complainant produced four photocopies of the receipts to the police and it was mentioned in the remand application as well as complaint but that documents were not marked by the trial Court. However, it was admitted by the PW-1 to PW-4 that the receipts for having already paid 6,000/- towards arrears of tax. It is pertinent to note that Exs.P-8 and P-9 is the demand notices demanding to pay tax within three days failing which the movable properties were to be attached by the accused. There was apprehension of the property of the complainant was being attached in the hands of accused. Therefore, on the day of the incident, PW-1 went to the office of accused and paid `5,000/-

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as spot payment towards arrears of tax but he same was accepted by the accused. The accused has not denied regarding acceptance of 5,000/- and he gave explanation as per Ex.P-4 that he has received the amount as spot payment towards tax. It was the case of the complainant that he is due of 21,189/- as per Exs.P-8 and P- 9.

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Now coming to the evidence of PW-2, if PW-2 really heard the conversation between the accused and PW-1, there cannot be any material contradiction in their evidence in respect of the admission and explanation by the accused. PW-1 says that he met the accused and accused asked the complainant whether he brought the amount. The complainant told why he should pay the amount. Then the accused said to have told that he will do the work only if the amount was paid. There is no clarity in the evidence of PW-1 whether the accused demanded `5,000/- as bribe to do the favour to the complainant. It is only vague conversation that the accused asked money and even if the complainant went to the office of the accused in order to trap the accused as per the instruction given by PW-4 where as the I.O. told that if the accused demanded bribe he should pay. The question of asking the

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accused and why he should pay the amount does not arise. PW-1 stated that why he should pay the amount and thereafter the accused stated only when the payment is made, the work will be done. As already stated above that the last day for making payment of arrears of tax by the PW-1 was on the date of incident. As per evidence of PW-1, the PW-2, shadow witness was waiting outside of the office and came into the office after the signal of the complainant whereas PW-2 altogether says a different version that PW-1 met the accused and accused asked whether he has brought the amount of bribe of 5,000/-. Absolutely the PW-1 has not stated that accused using the word ‘bribe’. It is stated by PW-2 that the accused demanded for bribe of 5,000/- and the complainant paid the same. It is also pertinent to note that there were other two officials present in the office of the accused very near to the table of the accused in the room measuring 8 to 9 feet. Such being the case, the fact of demanding `5,000/- as bribe using word bribe as stated by the PW-2 cannot be acceptable. There is material contradiction in respect of conversation held between the accused and PW-1. Therefore, the PW-2 when he stood outside might not have heard any conversation his evidence is not corroborated with the evidence of PW-1. It is pertinent to note that

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it was nowhere stated in anybody’s evidence that whether the accused has power to reduce the tax amount or not. PW-1 did not know that the accused has authority to reduce or increase the tax amount or not. It is also pertinent to note that whether the accused can accept part payment of the tax by cash. As regards to the contention of learned Special Counsel that accused has no power to receive the part payment and he is bound to receive the entire amount or it is only the tax payer to deposit the tax amount in the bank there is no evidence available. In this regard the I.O. has not collected any evidence by examining the superior office of the HDMC to say that the accused has no power to accept the arrears of tax and the tax should be paid only through bank. Therefore, the contention of Spl. Counsel cannot be acceptable.

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PW-4 clearly admitted that he has not collected any evidence from HDMC and also not recorded the statement of the persons who were also present in the office of the accused at the time of incident. Therefore, non-examination of officials who were present along with the accused, draw an adverse inference against the case of the prosecution that the accused demanded bribe of `5,000/- and the same cannot be acceptable. The case of the

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accused is that the complainant in order to avoid the attachment of his movable property for having not paid the arrears of tax amount, has approached the Lokayukta Police. There was a chance for taking revenge against the accused. Therefore, it cannot be believed that the accused demanded the bribe to do favour to the complainant. That apart, I.O. has not examined the original owner of the property though notice was issued to them.

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The accused in his written statement admitted that he has received 5,000/- from the complainant as the part payment of arrears of tax but not as bribe. He further stated that on the last date for payment of arrears of tax i.e., on 17.11.2005, the complainant came and gave 5,000/- as arrears of tax otherwise on the next day his movable property will be attached. Hence, he received `5,000/- towards arrears of tax. Though he has not entered into the witness box he probablise his case that he has collected the arrears of tax from the complainant and not the bribe.

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In this regard, learned counsel for accused relied upon the judgment of Hon’ble Supreme Court in the case of T. Subramanian Vs. The State of Tamil Nadu reported in 2006 (1) SCC 1 wherein the Hon’ble Suprme Court has held as under:

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Mere receipt of Rs.200/- by the appellant from PW-1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1) (a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao v. State of Maharashtra [2002(1)SCC 371], the accused, a patwari, was on a compaign to collect loan amounts due to Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. This Court accepted such explanation (though such explanation was not immediately offered as in this case, but was given only in the statement under Section 313) holding thus:-

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It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not

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required to establish his defence by providing beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.”

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In Chaturdas Bhagwandas Patel v. The State of Gujarat (AIR 1976 SC 1497), this Court held that the burden that rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Act, is not onerous as that cast on the prosecution to prove its case. But such burden has to be discharged, 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 is referred to in Section 161 IPC.

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In State through Inspector of Police, Andhra Pradesh v. K. Narasimhachary [2005(8)SCALE 266], we have reiterated the well recognized principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court; and that only where the material-on-record leads to a sole and inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court.

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In the case of M. Abbas Vs. State of Kerala reported in I (2001) CCR 243 (SC) , the Hon’ble Supreme Court has held as under:

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The appellant had been charged for offences under Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947 and Section 161, IPC. As already noticed, the factum of recovery of the amount of Rs.150/- from the person of the appellant, is not in doubt. Is the presumption under Section 4(1) of the Prevention of corruption Act, 1947 attracted to the facts of this case? From a bare reading of Section 4(1) it is seen that presumption arising under Section 4 is a rebuttable presumption and is not available to the prosecution for proving a charge under Section 5(2) read with Section 5(1)(d) of the Act. That presumption arises only in regard to cases falling under Section 161, IPC or to an offence referred to in Clause (a) or (b) of Section 5(1) of the Prevention of Corruption Act, 1947. Since, the presumption under Section 4(1) is not attracted to an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, it cannot be raised against the appellant for the appellant for the said offence. Whether presumption can be raised in the facts and circumstances of this case with regard to the offence under Section 161, IPC is the next issue?

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The presumption under Section 4(1) in reference to an offence under Section 161, IPC is, as already noticed, a rebuttable presumption. The only evidence led in this case to establish charge under Section 161, IPC, of appellant having received

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gratification other than legal reward, as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions to favour the prime mover is the statement of the Contractor, PW-2. As already noticed, the Contractor has given different versions of the occurrence in his statement before the vigilance wing and in Court. At the trial, he has not supported the prosecution case fully. On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement, recorded under Section 313, Cr.P.c. is quite plausible. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. On prosecution’s own showing, in this case, that onus can be said to have been duly discharged by the appellant, more particularly, when the prosecution did not lead any evidence to show as to who made the payment to Kamalasanan who had removed the bump from the road, which bump was otherwise required to be removed by PW 2 for getting refund of his earnest money and security. Maybe, the allegation that the appellant accepted the amount as bribe to process his refund application is true but the Court cannot convict an accused only on such probability or suspicion, howsoever strong it may be. ‘Between may be true and must be true, there is a

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long distance to travel’ and in this case the prosecution has failed to travel that distance through any unimpeachable evidence. The case of the prosecution has not been established beyond a reasonable doubt.

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In the case of Suraj Mal, Vs. The State Delhi Administration

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reported in AIR 1979 SC 1408 , the Hon’ble Supreme Court has held as under:

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“Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unrealiable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.”

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In the Co-ordinate Bench of this Court in Crl.A.No.907/2004 in the case of Sri Rangappa Vs. The State of Karnataka has held as under:

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In this connection, it is also relevant to refer to the observations of the Apex Court in the case of T. Subramanian Vs. The State of Tamil Nadu, reported in AIR 2006 SC 836. In the said decision, at paragraph-7 at page 838, the Apex Court has referred to an earlier observation made by it in the case of

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Punjabrao Vs. State of Maharastra (2002)(1) SCC 371), which observation reads as under:

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“It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by providing beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.”

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It is also useful to refer to another decision which is of this court in Criminal Appeal No.223/1999, disposed of on 11.12.2001, and dealing with the earliest statement given by the accused, a learned Single Judge of this court has observed thus:

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“…..This earliest statement of the respondent recorded immediately after the raid clearly attracts the doctrine of “Resgestae”. This conduct of the accused is relevant as per Section 6 of the Evidence Act. The principles of law embodied in Section 6 of the Evidence Act is known as rule of “Res-gastae” recognized by English law. The essence of the doctrine is that a

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fact which, though not in issue is so connected with the fact in issue “has to form part of the same transaction” becomes relevant by itself. This rule is normally speaking is an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement on fact admissible under Section 6 of the Evidence Act is on account of spontaneity and immediacy of such statement or fact in relation to the fact in issue. In the present case, the utterances or explanation of the respondent immediately after the raid will be relevant to show what exactly happened and as to what was the reaction or conduct of the accused also. ….”

¶101

In the light of the aforesaid law laid down by the Apex Court, all that is required on the part of the accused is to place the material which would probablise his defence. In the instant case also, the accused has not only placed on record the written statement giving all the details in reply to 313 statement but also has given before the investigating agency his earliest reply in the form of Ex.P-5. When the said defence evidence of the accused placed through Ex.P-5 has not been shown to be not a reliable one, the trial court could not have brushed aside the

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entire defence version when it is a settled law that the material that is placed by the defence and which has not been controverted also requires to be considered on par with the evidence of the prosecution witnesses. Therefore, non-consideration of the said defence evidence by the trial court is a serious infirmity.

¶104

There is inconsistency of the evidence in PW-1 & PW-2 regarding demanding bribe. The accused accepted the cash from the complainant. The facts of non-examination of witnesses from the office of the accused who were adjacent to the table of the accused at the time of raid and non-examination of any other official from the office of HDMC to show that the accused has no power to receive cash towards arrears of tax and the situation of PW-1 to avoid attachment of his movable property, indicate that the PW-1 with an intention to avoid attachment of his property, filed complaint before the Lokayukta Police. Therefore, question of complainant paying any bribe to the accused does not arise. Therefore, the trial Court not properly appreciated the evidence of PW-1 and PW-2 and not considered the explanation offered by the accused. It is even to be considered at one view that the accused accepted the amount as bribe and another view is, accused

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accepted the amount as arrears of tax, when two views are possible, one view which is favourable to the accused shall be accepted and the benefit of doubt shall be extended to the accused and the accused successfully rebutted the presumption available to the prosecution that the complainant would be benefited rather accused, as the property of the complainant was being attached for non-payment of arrears of tax. Therefore, the accused is entitled for acquittal. Hence, the following:

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ORDER

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The appeal is allowed.

¶109

The judgment and conviction dated 31.03.2010 passed by the III Addl. District Sessions and Special Judge, Dharwad in Spl.K.L.A.CC.No.3/2006 is set aside. The accused is acquitted of the offences punishable under Section 7 and 13(1)(d)(i) read with 13(2) of Prevention of Corruption Act, 1988.

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The bail bonds stand cancelled.

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The fine amount paid by the accused, if any, shall be refunded.

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Sd/-

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JUDGE

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Gab-para 1 to 11 Naa-para 12 to 18

Ramappa S/O Yellappa Amminbhavi v. State of Karnataka

Case brief

What is this about?

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Ramappa S/O Yellappa Amminbhavi v. State of Karnataka

Case brief

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What did the court decide?

What the court decided

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