Criminal appeal against conviction under the Prevention of Corruption Act for demanding a bribe to issue a disability certificate. The court held the shadow witness testimony reliable and that subsequent departmental exoneration did not affect the criminal conviction.
Criminal appeal dismissed; conviction and sentence affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.186 OF 2013
BETWEEN:
DR. T. VENKATESH S/O SRI. G. THIPPAIAH AGED 48 YEARS SENIOR SPECIALIST ORTHOPEDIC DEPARTMENT C.G.HOSPITAL, DAVANAGERE NOW WORKING AS SENIOR SPECIALISTS AT GENERAL HOSPITAL, HIRIYUR R/AT HOSPITAL QUARTERS LOKAVANAHALLI, HIRIYUR DISTRICT CHITRADURGA … APPELLANT (BY SRI.C. H. JADHAV, SR.ADV. FOR SRI. S. RAJU, ADV.)
AND:
STATE BY LOKAYUKTA POLICE DAVANAGERE, REP. BY ITS SPECIAL PUBLIC PROSECUTOR OFFICE OF LOKAYUKTA M.S.BUILDING DR.AMBEDKAR VEEDHI BANGALORE – 560 001 … RESPONDENT (BY SRI.VENKATESH S. ARABATTI, SPL. PP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 13.02.2013 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE (LOKAYUKTA COURT), DAVANAGERE IN SPECIAL (LOK) CASE NO.4/2008 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFICE PUNISHABLE UNDER SECTION 7 AND SECTION 13(2) READ WITH SECTION 13(1)(d) OF PREVENTION OF CORRUPTION ACT. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I FOR A PERIOD OF 1 YEAR AND PAY FINE OF RS.30,000/- IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 AND SECTION 13(2) READ WITH SECTION 13(1)(d) OF PREVENTION OF CORRUPTION ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The accused in Special (LOK) Case.No.4/2008 on the file of Prl. District and Sessions Judge and Special Judge (Lokayukta), Davanagere has preferred this appeal challenging the judgment
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dated 13.02.2013 convicting him for the offences under sections 7 and 13(2) r/w section 13(1)(d) of Prevention of Corruption Act.
examined by the prosecution, and 36 documents and 9 material objects, the trial court held the accused guilty of the offences mentioned above
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and convicted him to rigorous imprisonment for a period of one year and fine of Rs.30,000/- with default imprisonment period for six months. It is held by the trial court that notwithstanding the hostility of PW.2, who lodged FIR with Lokayukta, the evidence of PW.1 and 3 clearly establishes the prosecution case. The learned trial court judge has observed that PW.1 was the shadow witness, who followed PW.2 to the chamber of the accused and saw the latter demanding PW.2 for bribe and receiving the same. PW.1 has clearly established demand for bribe by the accused and its acceptance. When trap was laid, the right hand wash of the accused tested positive for the phenolphthalein test. PW.3 corroborates the testimony of PW.1 in regard to trap mahazar marked as Ex.P.21. Both PW.1 and 3 have consistently given evidence that the accused gave an explanation as per Ex.P.14 after he was caught in a trap. The evidence given by the investigating
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officer, i.e., PW.11 is also believable. Despite the fact that the oral testimony of PW.10, the chemical examiner that when he subjected M.O.4 to chemical examination for detecting the presence of phenolphthalein, he did not find its presence, the evidence given by PW.1, 3 and 11 cannot be discarded and therefore, the prosecution was able to prove its case beyond reasonable doubt.
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not have been believed by the trial court. The specific defence was that the tainted money was put in the table drawer of the accused. The very reason that the evidence of PW.10 indicated that M.O.4 did not contain traces of phenolphthalein would fortify the defence theory. The evidence of PW.3 does not establish the fact that accused demanded for bribe. He argued further that it is now a well established principle that mere recovery of tainted money from the accused cannot be the basis for conviction unless the prosecution proves that there was demand for bribe. In this case there is no concrete proof for demand and also acceptance and thus the accused becomes entitled to acquittal.
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In a departmental enquiry, it is enough if probability in the prosecution case is established and therefore when the accused was exonerated of the charges, the court which expects proof beyond reasonable doubt should not convict the accused. Placing reliance on some of the decisions to which I will refer later, he argued for allowing the appeal and acquitting the accused.
for the respondent while arguing in support of the impugned judgment submitted that the evidence of PW.1 clearly discloses that the accused demanded for Rs.3,000/- to issue disability certificate to PW.2. PW.1 was a shadow witness and his evidence clearly shows that he followed PW.2 to the chamber of the accused and heard the accused asking PW.1 to pay him Rs.3,000/-. He has also deposed that the accused received the tainted money from his right hand and kept it in the table
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draw. Trap was laid after PW.1 gave the signal by wiping his face with hands. When the accused was subjected to phenolphthalein test, his right hand wash changed its colour. PW.3 corroborates the testimony of PW.1 to the extent of collecting the hand washes of the accused and the right hand wash changing its colour. Both PW.1 and 3 have stated that the accused gave a statement after trap as per Ex.P.14 stating that the money was put in his table draw, and his statement clearly indicates that PW.2 went inside the chamber of the accused for the purpose of paying the bribe amount. It is true that the evidence of PW.9 shows that M.O.4 did not contain the traces of phenolphthalein. But the ocular testimony of PW.1 and 3 in regard to the solution changing its colour when the right hand of the accused was washed, cannot be ignored. For this reason, though PW.2 has turned hostile, it matters least. It can be very well inferred that PW.2 turned hostile purposefully.
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He admitted that his picture was visible in the photographs taken at the time of trap. This is enough to come to conclusion that PW.2 was very much present and was won over by the accused.
the departmental enquiry, his argument was that the standard of proof required in the departmental enquiry is less than standard of proof to be given in a criminal proceeding. Therefore the result in the departmental enquiry cannot be considered as a ground for acquitting the accused. He too has placed reliance on certain judgments which will be referred to later.
(i) Has the trial court committed an error in placing reliance on the testimonies of
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PW.1, PW.3 and PW.11 when PW.2 turned hostile?
(ii) Whether exoneration of the accused in the departmental enquiry can be a ground for acquitting the accused?
(iii) What order?
Point No: (i)
has to prove that there was a demand by the accused for illegal gratification and that he accepted it pursuant to demand. It is true that here, PW.2 who approached Lokayuktha police alleging that the accused demanded for bribe of Rs.3,000/from him for issuing disability certificate, turned hostile in entirety. But PW.1, the shadow witness has clearly given evidence that at 4.30 p.m. on 3.12.2007, the trap team reached C.G. Hospital, Davanagere and PW.2 Ravi himself took him to Room No.2 of Orthopedic wing of the
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hospital. In that room the accused was sitting, and when PW.2 requested the accused to issue the disability certificate, the latter asked PW.2 to give Rs.3,000/-. Then PW.2 gave him Rs.3,000/- to the accused, who received it with his right hand fingers and kept the notes in the table draw. Accused told PW.2 to come on the next day for collecting the disability certificate. It is the further evidence of PW.1 that PW.2 came out of the chamber of the accused and gave a signal to the Lokayuktha police by wiping his face. Then the police team entered the chamber and subjected the accused to phenolphthalein test. When the fingers of the right hand were dipped in the sodium carbonate solution, there was change of colour. The right hand wash was collected in a bottle and marked article no.4. The said right hand wash was marked M.O.4 in the court. Then the accused himself removed the tainted money from his table draw and produced the same before
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the police. Accused was asked to give explanation and accordingly he gave the same as per Ex.P.14 stating that the complainant i.e., PW.2 thrusted the money into his table draw. Trap mahazar is Ex.P.21. Photos were also taken as per Ex.P.22 to P.25.
witness to entrustment panchanama and he too was a member of trap team. His evidence is that at 4.50 p.m. on 3.12.2017, PW.2 came out of the chamber of the accused and gave a signal. Immediately the Inspector of Police went near PW.2 and asked him as to what happened. PW.2 replied that accused demanded for Rs.3,000/when he asked him to issue the disability certificate, that the accused received the money from him with his right hand and then kept the notes in the table draw. He has stated that PW.1 supported the say of PW.2 at that time. The
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further evidence of PW.3 is that when the right hand of the accused was washed with sodium carbonate solution, it changed its colour into pink and when the accused produced the tainted notes before the Inspector, their serial numbers tallied with the serial numbers noted in the entrustment panchanama. He has also stated that the accused gave explanation as per Ex.P.14 and that photos were taken as per Ex.P.22 to P.25.
perused, what is found is that the defence counsel just gave suggestions denying the entire prosecution case and all the suggestions were denied by the witnesses. PW.1 and 3 have not been assailed. If the evidence given by PW.2 is seen, it appears that he has not supported the prosecution. When PW.1 and 3 have supported the prosecution, merely because PW.2 did not support, it cannot be said that the prosecution has not been
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able to prove its case. PW.2 totally denies his presence at the time of trap, but he admits his signature on the complaint given by him as per Ex.P.2 and P.14 and the photos Ex.P.22 to P.25. Having admitted the signatures and taking of photos, if he deposed contrary to the contents of Ex.P.2, especially when PW.1 and 3 confirmed the presence of PW.2, it can only be stated that he turned hostile purposefully. Moreover the evidence of the investigating officer i.e., PW.11 regarding receiving of complaint and laying trap is fully believable.
when he subjected article no.4 i.e., M.O.4 to chemical examination, it did not answer for presence of phenolphthalein. This is the only circumstance staring at the prosecution. But for this reason alone the trust worthy ocular testimony of PW.1 and 3 cannot be discarded.
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Moreover the very explanation given by the accused as per Ex.P.14 shows that it was PW.2 who had been to his chamber. Even though forcible thrusting of money into the table draw cannot be accepted in view of the testimony of PW.1, at least his explanation shows that PW.2 visited his chamber on 3.12.2007 for the purpose of obtaining disability certificate.
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distinguishing feature that can be considered in order to opine that the said judgment cannot be applied here. PW.1 is a shadow witness whose evidence is much relied upon by the trial court.
takes me to concur with the findings recorded by the trial court that the evidence of PW.1,3 and 11 can be believed and thus point no.(i) is answered in negative.
Point No.(ii):
faced departmental enquiry in connection with the
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FIR registered against him at the instance of PW.2 and that he was exonerated of the charges leveled against him. When the trial court gave its judgment of conviction, it appears that the departmental enquiry was still in progress and that the enquiry officer gave his report on 4.5.2016 and it was accepted by the Government on 20.06.2016. Enquiry report and the Government Order are produced. This is a subsequent development which the accused has brought to the notice of this court.
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the Supreme Court in the case of Vinod Kumar Vs. State of Punjab (2015)3 SCC 220 in support of his argument on this point which is already referred to above.
“16. In the ultimate eventuate, the following principles were culled out from the decisions referred to in the judgment. The majority has put it thus:-
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“The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
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(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases”.
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the Special Court gave its judgment. Therefore the exoneration of accused in departmental enquiry, which is a subsequent event, has least effect on this appeal. Point No. (ii) is answered in the negative.
Point No. (iii)
of merits. Appeal is dismissed.
Sd/JUDGE
sd/-
3 issues framed by the court
Whether the trial court committed an error in relying on shadow witness testimony when the primary complainant turned hostile?
Whether exoneration in a subsequent departmental enquiry can be a ground for acquittal in criminal proceedings where conviction was already finalized?
Whether the appeal filed under Section 374(2) Cr.P.C. has any merits?
Colour shows how this judgement treated each authority
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Krishan Chandar Vs. State of DelhiDistinguished¶64
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Radheshyam Kejriwal Vs. State of West BengalReferred¶77
Radheshyam Kejriwal Vs. State of West Bengal - 2011 (3) SCC 581 · Who else cites this
Videocon Industries Ltd. Vs. State of MaharashtraReferred¶77
Videocon Industries Ltd., and Another Vs. State of Maharashtra and Others [(2016) 12 SCC 315] · Who else cites this
Vinod Kumar Vs. State of PunjabReferred¶76
Vinod Kumar Vs. State of Punjab (2015)3 SCC 220 · Who else cites this
3 provisions across 2 enactments
DR. T. VENKATESH
STATE
SREENIVAS HARISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
