Allowed

Dr Seetharamu S/O T L Chikanna v. the State of Karnataka

Karnataka HC7 Dec 2022CRL.A/366/2011

Case brief

AI extract

What is this about?

Appealing against conviction for bribery under the Prevention of Corruption Act. Appellant contended the trap evidence was flawed and the accused was in the operating theatre. The Court found inconsistencies in prosecution evidence regarding the bribe demand timing and location. Dismissing prosecution presumption, the Court acquitted the appellant.

What did the court decide?

Impugned judgment of conviction set aside; accused acquitted; bail bonds cancelled; records sent back to trial court.

Dr Seetharamu S/O T L Chikanna Vs the State of Karnataka — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL APPEAL NO.366 OF 2011

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BETWEEN:

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Dr. Seetharamu S/o T.L.Chikkanna Aged: 60 years Occ: Retired Government Service Now Residing at No.417 4^th Main, 4^th Stage T.K.Layout, Saraswathi Pura Mysuru - 9

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…Appellant

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(By Sri C.H.Jadhav, Senior Counsel for Sri Chethan Jadhav, Advocate)

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AND:

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The State of Karnataka By Lokayukta Police Represented by its Public Prosecutor Multistoried Building Ambedkar Veedhi Bengaluru - 1

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…Respondent

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(By Sri B.S.Prasad, Advocate)

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This Criminal Appeal is filed under Section 374(2) Cr.P.C., praying to set aside the order dated 18.03.11 passed by the Special Court and III Additional District and Sessions Judge, Mysore in Spl.C.No.93/2007 convicting the appellant/accused for the offence p/u/s

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7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act 1988, and etc.

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This Criminal Appeal coming on for dictating judgment this day, the Court delivered the following:

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JUDGMENT

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This appeal by the accused arises from the judgment dated 18.03.2011 in Spl.C.No.93/2007 on the file of III Additional District and Sessions Judge, Mysuru. The appellant was tried for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act (‘Act’ for short) and having been found guilty of the said offences, he was sentenced to simple imprisonment for a period of one year and fine of Rs.10,000/- with default imprisonment for three months for both the offences.

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The prosecution case is that the appellant who was working as a Medical Officer at K.R.Hospital, Mysuru demanded for a bribe of

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Rs.3,000/- from PW6, B. Narayana for conducting surgery on one Basavaraju, the employee of PW6. Then the appellant scaled down the bribe amount to Rs.1,000/-. Trap was laid on 24.6.2004. The appellant was caught when he was receiving Rs.500/- from PW6. Further investigation led to filing of the charge sheet against the appellant.

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The prosecution examined 8 witnesses,

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PW1 to 8, and produced 19 documents as per Ex.P.1 to P.19 and 12 material objects M.O.1 to 12 in order to establish its case. Thereafter the accused examined four witnesses, DW1 to 4 and got marked Ex.D.1 being a portion of the statement made by PW6 before the investigating officer.

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For convicting the accused the trial court has recorded the following reasons. If the evidence given by PW6 is scrutinized, it can be very well said that his evidence is believable,

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because there is no reason to hold that he deposed falsehood. There was no ill-will between him and the accused. The evidence of PW6 clearly discloses demand made by the accused for bribe to conduct surgery. His evidence is corroborated by PW1 and 2. They are independent witnesses working as Readers at Yuvaraja College, Mysuru. They had no reason to falsely implicate the accused. PW2 was a shadow witness, he heard the accused asking PW6 for money and then saw the accused receiving the money and keeping the same in his shirt pocket. When the accused was subjected to phenolphthalein test, his right hand wash answered positive for the presence of phenolphthalein. When the pocket portion of his shirt was dipped in sodium carbonate solution, it also answered positive for the presence of phenolphthalein. These circumstances clearly show that the accused received bribe money from his right hand and kept the same in his shirt

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pocket. He gave explanation as per Ex.P.13, but it cannot be believed because what he has stated in Ex.P.13 is not corroborated by the defence

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witnesses.

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Referring to the evidence given by the defence witnesses, the trial court has held that DW3 and 4 were the post graduate students working under the accused. DW1 is a ward boy working in the same hospital and DW2 is a carpenter known to the accused. Their evidence indicates that the accused was conducting surgery inside the operation theater. If this was the fact, the accused would not have come to know that PW.6 came to meet him. The fact that the evidence given by the defence witnesses is difficult to be believed because according to PW1, 2, 5 and 6, the accused was wearing a blue colour shirt and was sitting in his chamber, that means he was not inside the operation theater. But DW3 and 4 have

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stated that the accused was conducting surgery inside the operation theatre. If he was inside the operation theatre, he should be wearing surgical dress and in that event there was no occasion for PW6 to insert phenolphthalein smeared currency notes into the shirt pocket of the accused. Since the tainted notes were recovered from the shirt pocket of the accused, the entire defence theory fails. For this reason, the prosecution evidence

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was not rebutted and therefore the presumption available under Section 20 of the Act could be attached. Therefore a clear conclusion can be drawn that the accused demanded for bribe for conducting surgery on Basavaraju and accepted Rs.500/- being part of the bribe demanded by him and hence he can be convicted and sentenced.

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I have heard the arguments of Sri C.H.Jadhav, learned senior counsel for the

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appellant/accused and Sri B.S.Prasad, learned

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standing counsel for respondent/Lokayukta.

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It was the argument of Sri C.H.Jadhav, that PW6 met Lokayukta on 23.06.2004 and lodged complaint as per Ex.P.9. After registration of FIR, the Lokayukta police thought of laying a trap on the same day. But he could not lay trap on 23.06.2004, because the accused was not available. They were very much determined to trap the accused and therefore on the very next day they laid trap. He argued in this regard that though tainted money was recovered from the shirt pocket of accused, the prosecution story that the accused received tainted money inside the operation theatre cannot be believed, because operation theatre was a prohibited place and there was no entry to anybody. The prosecution has come up with a case that accused received the money in the room which was being used for

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changing the dress. But the evidence of DW1 has not been properly appreciated by the court below because DW1 was the attender at the operation theatre. Actually PW6 and PW2 wanted to enter the operation theatre and at that time DW1 did not allow them inside, and for this reason, there took place a commotion. The accused was inside the operation theatre. Hearing commotion, he came out and at that time PW6 gained entry into the changing room and in the guise of shaking the right hand of the accused, he tried to give money of Rs.500/- to the accused. But when the accused did not receive, the notes fell down. PW6 picked up the notes and kept the same inside the shirt pocket of the accused. In this way the accused came in contact with bait money and this was the reason for phenolphthalein test answering positive. This aspect has been ignored by the trial court. Then he refers to the evidence of DW3 and DW4 and argues that their evidence clearly

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discloses that accused was inside the operation theatre and came out only after hearing commotion. There is no reason to discard their evidence. Just because DW3 and DW4 were post graduate students, it cannot be said that they have deposed falsehood. It was his argument that the evidence of defence witnesses should have received equal appreciation on par with the

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evidence given by the prosecution witnesses.

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Sri C.H.Jadhav argued further that just because the tainted money was recovered from the accused, the prosecution case was not worthy of acceptance because there was no evidence with regard to demand put forward by the accused for bribe. It was one Basavaraju who was to be operated upon for his stomach pain. Basavaraju was not at all examined. In this view the prosecution case should fail. The trial court therefore should have acquitted the accused of the

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offences. With these points, he argued for allowing the appeal and setting aside the

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impugned judgment of conviction.

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Sri B.S.Prasad argued that the place of

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trap was not inside the operation theatre. As per Ex.P.11, trap panchanama, it was in the corridor situate in front of the operation theatre. Everyone had access to this place. In Ex.P.9, it is clearly written that when Basavaraju and PW6 met the accused on 22.06.2004, the accused demanded for Rs.3,000/- to conduct surgery for removing the puss found inside his stomach. Then on 23.06.2004, PW6 met Basavaraju who had been admitted to the hospital and came to know that the accused had asked Basavaraju for paying him at least Rs.1,000/- for conducting surgery. Then PW6 met the accused and at that time, the accused agreed for receiving Rs.1,000/and insisted on advance payment of Rs.500/-. PW6

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has clearly given evidence in this regard. As regards demand for bribe is concerned, PW6 is the competent witness. His evidence is fully

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believable.

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He further submitted that trap was laid on 24.06.2004. PW2 was the shadow witness. He has also deposed that when PW6 met the accused, he heard the latter asking PW6 for money. Therefore PW2 also speaks about demand for bribe soon before trap. The defence has failed to establish that there was any enemity between PW6 and the accused. PW2 was a teacher in the college and the accused did not know him at all. For this reason it cannot be said that PW2 has deposed falsehood. Thus seen, there is consistent evidence in the demand made by accused for bribe. The evidence of PW6 is corroborated by the testimony of PW2.

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It is the argument of Sri B.S.Prasad that

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when the accused was subjected to phenolphthalein test, his right hand wash answered positive and when the pocket portion of the shirt worn by the accused was dipped the sodium carbonate solution, it charged its colour. That means the accused received tainted money from PW6. Soon after the trap, he gave an explanation that the money was forcibly thrusted into his pocket. But DW1 has stated when PW6 tried to give money to accused, the latter did not receive the notes; and as the notes fell down, PW6 took the notes and then kept them inside the shirt pocket of the accused. But the accused has not stated so in Ex.P.13. Thus seen, there is inconsistency in the explanation given by the accused and in the evidence given by DW1 to DW4. Therefore the defence theory fails. If really PW6 had made an attempt to handover the tainted money to accused forcibly by shaking his right

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hand, the accused should have given a statement like that in Ex.P.13. He did not state so.

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Therefore the evidence of defence witnesses must be discarded. He pointed out that accused did not conduct surgery. He was seen sitting in a room attached to the operation theatre. He was not wearing the doctor’s gown or apron. He was just wearing a shirt. So this being the evidence available on record, the burden was on the accused to have explained as to how and for what reason he was found in possession of phenolphthalein smeared currency notes. Section 20 of the Act can be applied. The presumption has not been rebutted by the accused. Therefore the trial court has rightly come to conclusion to hold the accused guilty of the offences with which he stood convicted and sentenced. He argued for dismissing the appeal.

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I have considered the arguments and

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perused the records.

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Perusal of Ex.P.9 shows that one

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Basavaraju an employee of PW6 was suffering from stomach pain. On 22.06.2004, when he was taken

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to the hospital, the accused examined him and detected presence of puss in the stomach and advised for surgery. It was in this context it is alleged that the accused demanded for a bribe of Rs.3,000/-. When Basavaraju and PW6 said that

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they were not able to arrange Rs.3,000/-, the accused asked them to give advance of Rs.500/and the balance sometime later. Thereafter Basavaraju was admitted into the hospital. It is also stated that when Basavaraju was alone in the hospital, accused told him that unless Rs.1,000/was paid, he would not conduct surgery. This was brought to the notice of PW6 by Basavaraju. Therefore PW6 met the accused and at that time

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the latter agreed to receive Rs.1,000/and insisted on payment of advance of Rs.500/-. This is what is written in Ex.P.9. Ex.P.9 gives an indication that there was a demand for bribe. But if the evidence of PW6 is perused, it becomes very clear that he deviated from the contents of Ex.P.9 and deposed in his examination in chief that accused demanded for Rs.5,000/- and when PW6 said that Basavaraju was not in a position even to pay at least Rs.500/-, there took place some verbal exchange between him and the accused. This gives an indication that some kind of quarrel might have taken place between the accused and PW6 on the first day itself. Inspite of that, Basavaraju was admitted to hospital as he was suffering from severe pain. PW6 has not stated in examination in chief that accused agreed for receiving Rs.1,000/- and all that his deposition discloses is that he told the accused that he would try to pay him as much as he could and requested

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him to conduct surgery. Then PW6 further deposed about meeting the accused on next day i.e., on 24.06.2004 and handing over bait money to him. To the extent of handing over bait money to the accused by PW6, there is of course corroboration from PW2, the shadow witness.

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The evidence of PW2 discloses that a trap was to be laid on 23.06.2004 itself. But it was not possible because the accused was not available on that day. Therefore trap was laid on the next day. He has deposed that when they first went to the chamber of the accused, he was not available there and came to know that accused was in the operation theatre. They came to meet the accused at the operation theatre. The accused was found sitting in the room attached to operation theatre. Seeing PW6 the accused asked him as to who he was. PW6 said that he was Basavaraju’s attender and at that time accused asked whether

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he had brought money. Then PW6 removed money from his shirt pocket and handed over the same to the accused. PW2 has stated that accused was wearing his formal dress; he received money and kept the same in his shirt pocket. PW6 came out of the room and gave a signal to the police and thereafter trap was laid. Therefore the evidence of PW2 also shows that accused received the money. So far as trap is concerned, when the accused was subjected to phenolphthalein test the evidence of PW2 and PW3 discloses that right hand wash of the accused answered positive for the presence of phenolphthalein in his right hand. Likewise, the pocket portion of the shirt also answered positive for the phenolphthalein test. To this extent as argued by Sri B.S.Prasad, there is corroboration to the evidence of PW6 by PW1 and PW2. PW1 is another panch witness who has also spoken about subjecting the accused to

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phenolphthalein test and he also corroborates the testimony of PW2 and PW6.

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As has been held by the trial court and argued by Sri B.S.Prasad, as regards receiving tainted money, there is evidence of PW1, 2 and 6. PW8 is the investigating officer and he has also spoken about the same. In fact accused does not dispute recovery of tainted money from him, his defence is something different. Out of 4 defence witnesses, the evidence of DW4 was discarded by the trial court because he was not tendered for cross examination. Therefore there remains evidence of only three witnesses, viz., DW1 to DW3.

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DW1 was a ward boy. He has stated that on 24.06.2004, when he was standing in front of the operation theatre, two persons came and wanted to meet the doctor. He said that nobody could be allowed inside the operation theatre. At

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that time, one of them said that the person being operated was related to him and therefore he wanted to meet the doctor. As DW1 did not show any response, there took place exchange of words between them. At that time, the accused came out of operation theatre and enquired as to what was happening. Then one of the two persons who wanted to enter the operation theatre gave something to accused while shaking his hand. The accused threw away that. It fell on the ground and then that person took it and kept it inside the pocket of the apron that the accused was wearing. Immediately two other persons held the hands of the doctor.

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DW2 was the patient of the accused. His evidence is that on the date of trap, he went to the hospital to meet the accused. At that time he saw two persons coming there. Accused came out of the operation theatre. Out of the two persons,

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one person wanted to shake the hand of the doctor

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and tried to give money to the doctor. But the doctor did not receive the money and the notes fell down. Then that person took the notes and kept them inside the shirt pocket of the doctor.

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DW3 was a post graduate student. His evidence is that one Basavaraju was to be operated upon for removing the puss formed inside the stomach. It was a minor operation. The accused who was the professor came inside the operation theatre for giving instructions to them. He marked the portion to be dissected for conducting surgery by seeing the ultrasound report. DW3 has stated that accused was wearing gloves. By that time there was a commotion outside the operation theatre and therefore accused went out. He also came out of the room, saw one person coming inside the corridor of operation theatre saying that he was the attender

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of the patient i.e., Basavaraju, shook the hands of the accused and tried to give something. The accused did not receive it and therefore it fell down and thereafter that person took the same and kept inside the shirt pocket of the accused. This is the evidence of DW3 in the examination in chief.

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Now if the evidence of PW1, 2, 6 and 8 is compared with the evidence of DW1 to DW3, certain inferences are possible to be drawn. As can be made out from the evidence of PW6, the accused was not there inside the operation theatre when he went to that place along with PW2 on 24.06.2004. In the examination in chief itself, PW6 has clearly stated that by the time he and PW2 came to that place, the time was around 8.45am. They were waiting there and the accused came to that place 10-20 minutes later. Soon after seeing the accused, PW6 said good morning

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to him and then accused asked him whether he was the attendant of Basavaraju. When PW6 said yes , the accused asked whether he had brought money. Inference that can be drawn from this answer of PW6 is that the accused was not inside the operation theatre and he came there 20 minutes after PW6 and 2 came to that place. Here two aspects can be noticed. In Ex.P9, it is clearly written that on 22.06.2004 itself, PW6 and Basavaraju met the accused. That means accused might have come to know PW6 for the first time on 22.06.2004. PW6 has stated in the examination in chief that when accused saw him near the operation theatre on 24.06.2004, the accused asked him as to who he was. From Ex.P9 it becomes clear that accused came to know PW6 two days earlier and this is believable, there was no occasion for the accused to ask PW6 about his identity when he saw PW6 near the operation theatre. According to PW6, accused was not inside

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the operation theatre when he met him on 24.06.2004. But according to DW1 and DW3, the accused was inside the operation theatre. Just because DW1 was a ward boy and DW3 was the post graduate student it is not possible to discard their evidence. The evidence of DW3 clearly indicates that since it was a minor operation, DW3 and other post graduate students were allowed to conduct operation. Basavaraju, the patient had already been taken inside the operation theatre, this aspect is not disputed by the prosecution. DW3 has stated that the accused marked the portion on the body of Basavaraju to be dissected. If the patient was inside the operation theatre, the presence of accused inside the operation theatre can be very much believed, because unless he would mark the portion to be operated, DW3 or other post graduate students could not have operated. This evidence of DW3 falsifies the evidence of PW6. In this view the evidence of

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DW1 is believable. When PW6 and another person i.e., PW2 tried to enter the entrance of operation theatre, DW1 might have stopped them. At that time a commotion might have taken place and hearing the same, the accused might have come out of the operation theatre. PW6 making use of this opportunity might have tried to hand over money to the accused and in all probability when the accused refused, he might have inserted the money into the shirt pocket. Thus seen, there is probability in the evidence of defence witnesses.

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Now the evidence with regard to demand can also be doubted, because the evidence of PW6 is so clear that accused refused to conduct operation unless money was given to him. But Basavaraju, the patient was admitted to hospital for conducting surgery. Moreover when the patient was inside the operation theatre, and as according to PW6, it was the accused who was

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supposed to conduct surgery, it was highly impossible that anybody would make use of that time to demand for bribe. If really the accused had demanded for bribe, PW6 would have waited till operation was over. So this gives rise to doubt the case of the prosecution. For this reason though the evidence of PW6 appears to have been corroborated by PW1, 2 and 8 with regard to receiving of money by the accused, yet the prosecution case is not free of doubtful circumstances. There are inherent defects in the prosecution case. And for this reason, presumption as available under Section 20 of the Act cannot be attached. It can also be held that if the evidence given by the prosecution witnesses is believable, at the same time the defence evidence can also be believable. Two versions are possible and for these reasons, the accused is entitled to benefit of doubt. For all these reasons I do not think that the reasons ascribed by the trial court for holding

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the accused guilty of the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Act can be sustained. Hence the following:

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ORDER

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Appeal is allowed .

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Impugned judgment dated 18.03.2011 in Spl.C.No.93/2007 passed by the Special Court and III Additional District and Sessions Judge, Mysuru is set-aside.

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The accused is acquitted of the offences with which he stood charged.

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His bail bond and surety bond stands cancelled.

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

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Sd/JUDGE

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SD/KMV

Dr Seetharamu S/O T L Chikanna v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr Seetharamu S/O T L Chikanna v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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