Dismissed

State by Lokayuktha Police v. Mahadevaswamy

Karnataka HC27 Oct 2023CRL.A/117/2012

Case brief

AI extract

What is this about?

Criminal Appeal against acquittal for corruption charges. The High Court upheld the trial court's acquittal, finding insufficient corroboration in witness testimony, missing sketches, and contradictions regarding the trap scene, concluding the prosecution failed to prove guilt beyond reasonable doubt.

What did the court decide?

The appeal filed by the State/Lokayuktha Police is dismissed, and the impugned judgment and order of acquittal are confirmed.

State by Lokayuktha Police Vs Mahadevaswamy — Corruption | Karnataka HC (2023)

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CRL.A NO. 117 OF 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO.117 OF 2012

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BETWEEN:

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STATE BY LOKAYUKTHA POLICE, MYSORE

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…APPELLANT

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(BY SRI. VENKATESH S ARABATTI, ADVOCATE FOR APPELLANT VIDE ORDER DATED 29.10.2022)

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AND:

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MAHADEVASWAMY S/O SUBBASHETTY, ASSISTANT PUBLIC PROSECUTOR, COURT OF 4^TH ADDL. FIRST CIVIL JUDGE, (JR.DN) & JMFC, MYSORE.

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…..RESPONDENT (BY SRI. C G SUNDAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING TO a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.06.2011 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSORE, IN SPECIAL CASE NO.41/2008 THEREBY ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) R/W. SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT; b) SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL 16.06.2011 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSORE, IN SPECIAL CASE NO.41/2008 BY ALLOWING THIS CRIMINAL APPEAL AND c) CONVICT AND SENTENCE THE RESPONDENT-ACCUSED FOR THE OFFENCES WITH WHICH HE HAS BEEN CHARGED IN ACCORDANCE WITH LAW IN THE INTEREST OF JUSTICE.

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CRL.A NO. 117 OF 2012

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 18.07.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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Being aggrieved by the acquittal of

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respondent/accused for the offence punishable under Sections 7, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 (for short ‘PC Act’), the State represented by Lokayuktha police has filed this appeal Under Section 378 (1) and (3) of Cr.P.C, with a prayer to set aside the impugned judgment and order passed by the Special Court, convict the respondent/accused and imposed appropriate punishment.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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A charge sheet came to be filed against the accused for the offences punishable under Sections 7, 13(1) (d) r/w Section 13(2), alleging that with regard to the death of Reshma Shetty daughter of complainant Ranjan Shetty, a case came to be registered based on

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3 CRL.A NO. 117 OF 2012

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the complaint filed by him before the Udayagiri Police, Mysuru. In the said case, accused gave threat to CW-4 Kavitha Shetty and with regard to the said incident, she lodged a complaint before V.V.Puram police and a charge sheet was filed in C.C.No.103/2006 on the file of IV Addl. I Civil Judge & JMFC, Mysuru. In the said case accused herein was working as Assistant Public Prosecutor, representing the State, in order to effectively present the case of the complainant, accused demanded bribe in a sum of Rs.1000/-. Not willing to pay the bribe complainant Ranjan Shetty filed a complaint and a trap was laid on 18.01.2007. In the presence of shadow witness Narendra Babu, accused demanded and received bribe in a sum of Rs.1000/- and he was successfully trapped by the Investigating Officer and thereby the accused has committed offences punishable under Sections 7, 13(1) (d) r/w Section 13(2).

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During the course of complaint, the complainant has stated that his daughter Reshma Shetty entered into an inter-caste marriage with accused No.1.

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She died on 01.01.2006 and she has given a written representation to the Tahsildar about her death. In this regard case is registered in Udayagiri police station and C.C.No.103/2006 is pending on the file of IV Addl. I Civil Judge & JMFC, Mysuru. In the said case complainant Ranjan Shetty and his wife Kavitha Shetty are witnesses. They approached the accused who was the Assistant Public Prosecutor in-charge of the said case and requested him to get them justice.

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Accused directed them to meet him on 16.01.2007 and demanded that he should be paid money periodically. Accused informed them that the hearing is fixed on 18.01.2007 and on that day they should pay him Rs.1000/- to make effective representation. When complainant questioned him as to why they should pay money to him, accused replied that if they failed to pay the money, he would not represent the case properly. Having lost their daughter the complainant and his wife were not ready to pay bribe to the accused and therefore he has filed the complaint.

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CRL.A NO. 117 OF 2012

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Based on the complaint, case was registered

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and accused was successfully trapped. After securing sanction, charge sheet was laid before the Special Court.

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In response to the summons, accused appeared and contested the matter. He pleaded not guilty and claimed trial.

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In order to prove the allegations against the

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accused, prosecution has examined four witnesses as PW-1 to 4 and relied upon Ex.P1 to 21 and MOs-1 to 4.

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During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence.

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He has not stepped into the witness box. However, during cross-examination of PW-1 he has got marked Ex.D1 to 5.

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Vide the impugned judgment and order, the trial court acquitted the accused, holding that the

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prosecution has failed to prove the allegations against accused beyond reasonable doubt.

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Being aggrieved by the impugned judgment

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and order, the State has filed this appeal, contending that it is contrary to law and evidence on record and as such liable to be set aside. The trial Court has not properly appreciated the oral and documentary evidence placed on record, resulting in miscarriage of justice. PW1, 2, 4 and 3 who are respectively the complainant, shadow witness, Investigating Officer and the Sanctioning Authority have consistently deposed with regard to the complicity of the accused. Their testimony clearly establish the fact that in order to carry out his work, accused demanded and received illegal gratification of Rs.1000/-. There are no major

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contradictions or omission going to the root of the prosecution case. The trial Court has erred in accepting

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the defence of the accused that complainant forcibly thrusted the tainted notes into his pocket, which finding is contrary to the evidence placed on record. Admittedly,

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the tainted notes were recovered from the possession of the accused and therefore it was obligatory on the part of the Court to draw presumption under Section 20 of the P.C. Act. Viewed from any angle the impugned judgment and order is not sustainable and prays to allow the appeal.

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On the other hand, learned counsel for respondent/accused supported the impugned judgment and order and submitted that on appreciation of oral and documentary evidence placed on record the trial Court has come to a correct conclusion and absolutely there are no justifiable grounds to interfere with the impugned judgment and order and sought for dismissal of the appeal.

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Heard arguments of both sides and perused the record.

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As rightly observed by the trial Court there is no corroboration between the complaint averments and the oral testimony of complainant (PW-1) before the Court. In the complaint, the allegations made against the

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accused was that he was in-charge of the case pertaining to the death (suicide) of his younger daughter Reshma Shetty and accused demanded bribe of Rs.1000/- to make proper submissions to the Court. Having regard to the fact that accused was working as an Assistant Public Prosecutor, he was not in-charge of the said criminal case pending before the Sessions Court for the death of complainant's daughter Reshma Shetty.

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However, during the course of his evidence before the Court, the complainant has deposed that in connection with the case pertaining to the death of Reshma Shetty, one of the accused Prakash gave threat to his wife i.e, wife of complainant and a complaint was lodged in C.C.No.103/2006 of V.V. Puram police station and the said case was pending before the IV Addl.I Civil Judge & JMFC and accused was in-charge of the said case. Although in the complaint, the complainant has given the case number as C.C.No.103/2006, which pertains to the threat given by one Prakash, who is one of the accused in the case pertaining to the death of

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complainant's daughter Reshma Shetty, but the details of the case given in the complaint refers to the death case of Reshma which is S.C.No.235/2006.

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It is relevant to note that during the crossexamination of the complainant, the defence has elicited that he has filed several complaints against number of persons and some of them have been disposed of and many cases are pending. He has admitted that during 2002, he had lodged a complaint against one Avva Madesha in C.C.No.66/2002 and it is dismissed. S.C.No.234/2003 is filed by him against the said one Avva Madesha is pending before the Fast Track Court. Complainant has denied that S.C.No.127/2006 filed by him against one Ravi Kumar is pending. However, he has admitted that S.C.269/2006 is filed by him against one Satish Kumar is pending. He has explained that it was the case pertaining to Kidnapping of his daughter. He has admitted that in Cr.No.79/2004, based on his complaint, the report is filed.

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The complainant has further admitted that C.C.No.1050/2005, based on the complaint filed by Satish Kumar against him and his wife Kavitha Shetty is pending. Another case based on the complaint filed by his daughter is registered against one Lokesh Prasad. The complainant has further admitted that based on his complaint filed against Inspector of V.V.Puram police station, Departmental Enquiry was conducted. Though he has denied a general suggestion that several cheque bounce cases are pending against him and his wife Kavitha Shetty, he has admitted that C.C.No.801/2008 and C.C.No.1815/2008 are pending on the file of II JMFC against his wife Kavitha Shetty, but claim that they have been disposed of.

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This particular cross-examination of the

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complainant with regard to number of cases pending before various Courts indicate that he is involved in several litigations and probably there was confusion while filing the complaint or it may be a case where the accused was deliberately implicated, especially in the

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light of the defence statement of accused at Ex.P7, wherein he has stated that on the date of trap, on seeing the complainant he said that complainant has filed so many cases and very often unnecessarily he is approaching him and at this stage, complainant forcibly thrusted the currency notes in his hand and in his pocket. Thus, the prosecution is not definite whether in respect of the case pertaining to the death of Reshma Shetty or in respect of the threat given by Prakash to Kavitha Shetty, the accused demanded bribe of Rs.1000/-.

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During the cross-examination of the

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complainant, it is elicited that the chamber of accused is very small. Except space for chair on which accused was sitting, a table in front of him and two chairs for the visitors, there was no space and the door to his cabin was having auto closure and used to close when the hand is released. During the course of his evidence, the complainant has stated that when he went inside the cabin, he found one person sitting in the visitor’s chair.

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He has not stated that when the accused demanded and received the bribe of Rs.1000/- from him, the said person had left. The reading of testimony of PW-1 indicate that when accused demanded and received the tainted notes of Rs.1000/-, the said person was still sitting in the chamber of the accused.

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During his cross-examination before the Court complainant has denied that the said person was Jagdish one of the witness in the case of threat given to Kavitha Shetty the wife of complainant and accused was briefing him. However, this fact is admitted by PW-3 D Jayaram, the Investigating Officer. If the complainant has handed over tainted notes to the accused in the presence of the said Jagdish, who is a person known to the complainant and witness in the case of threat given to Kavitha Shetty, it was most appropriate for the Investigating Officer to cite him as a witness. His testimony would have supported the case of the prosecution, especially in the light of the fact that there is doubt as to whether PW-2 Narendra Babu was present inside the cabin, when the

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exchange of bribe money took place between the complainant and accused.

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In his evidence, the complainant has stated

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that inside the cabin, he stood behind the visitor’s chair and on the demand made by accused handed over the tainted notes to him. However PW-2 Narendra Babu has denied that the cabin door of accused was having auto closure and it closed after the complainant entering the cabin. Though PW-2 has claimed that he was at a small distance behind the complainant and saw the accused demanding and complainant handing over the bribe money, having regard to the specific admission of complainant that the door automatically closed after him, it creates doubt whether PW-2 was inside the cabin. While complainant has stated that he stood behind the visitor’s chair and handed over the tainted notes, PW-2 has deposed that complainant sat in one of the visitor’s chair and handed over the tainted notes. This also creates doubt regarding the presence of PW-2 inside the

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cabin of accused when he allegedly demanded and received a bribe of Rs.1000/- from the complainant.

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The sketch at Ex.P11 indicate that the cabin of

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the accused is very small. It has not specified the exact measurements. It shows the presence of the complainant and shadow witness inside the cabin of the accused and sitting/standing side-by-side, but their evidence is otherwise. The sketch also does not indicate whether the door of the cabin of the accused was having auto closure. It is elicited through the cross-examination of PW-3 the Investigating Officer that at the spot he prepared a sketch. However, the same is not produced along with the charge sheet, which is the normal practice. The accused has taken up a specific defence that the sketch at Ex.P11 does not depict the true facts existing at the place and it contradicts the sketch prepared by him and therefore he has not chosen to produce it with the charge sheet. Of course the Investigating Officer has denied the said suggestion. The production of the sketch prepared by the Investigating Officer would have lent support to

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the case of the prosecution and clarified the confusion. The perusal of evidence of PW-1 and 2 makes it evident that they do not collaborate with each other and creates doubt as to the case of the prosecution.

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After the recovery of tainted notes from the possession of the accused, he has given statement in his handwriting to the effect that complainant forcibly thrusted the notes inside his hand and in his pocket, and before he could realise what happened, the Investigating Officer entered his cabin. It is pertinent to note that the during the course of their evidence, complainant, shadow witness, as well as the Investigating Officer (PW-1 to 3) have clearly stated that when both hands of accused were washed in sodium carbonate solution, only his right

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hand gave positive result for the presence of

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Phenolphthalein. The chemical report also indicate that the right hand wash having turned pink colour, whereas the left hand wash was almost colourless, though the presence of Phenolphthalein was found in a very slight amount in the left hand wash also.

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When a person receives currency notes, his natural instinct would be to count them to ascertain whether the money given is correct or not. Normally, in case of handing over of tainted notes, after the accused received the same, in his natural instinct, he would count them and in the process both of his hands would give positive result to the presence of Phenolphthalein. However, in the present case the fact that only right hand gave positive result probabalize the defence of accused that complainant forcibly thrusted the tainted notes in his right hand and thereafter into his pocket. Therefore, while his right hand and shirt pocket gave positive result for the presence of Phenolphthalein his left hand wash did not change colour.

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After thorough examination of the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion that no work was pending with the accused and the prosecution has failed to prove that he demanded and received bribe of Rs.1000/- and acquitted the accused. On re-appreciation

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of the oral and documentary evidence placed on record, this Court is of the considered opinion that no justifiable grounds exist to interfere with the well reasoned judgment and order of the trial Court. In the result, the appeal fails and accordingly the following:

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ORDER

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(i) Appeal filed by the State/Lokayuktha Police is dismissed. (ii) Impugned judgment and order dated 16.06.2011 in Spl.Case No.41/2008 on the file of Prl.District and Sessions Judge, Mysuru, is confirmed.

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(iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.

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Sd/JUDGE

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State by Lokayuktha Police v. Mahadevaswamy

Case brief

What is this about?

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State by Lokayuktha Police v. Mahadevaswamy

Case brief

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