Dismissed

State of Karnataka v. Mallangouda S/O Ningangouda Patil and Anr.

Karnataka HC23 Jan 2024CRL.A/200071/2016

Case brief

AI extract

What is this about?

The State, through the Lokayukta, filed a criminal appeal challenging the acquittal of twodefendants accused of corruption under the Prevention of Corruption Act, 1988. The High Court examined the evidence and dismissed the appeal, upholding the acquittal as the prosecution failed to establish the guilt of the accused.

What did the court decide?

The criminal appeal was dismissed, and the order of acquittal passed by the trial court was upheld.

State of Karnataka Vs Mallangouda S/O Ningangouda Patil and Anr. — Corruption | Karnataka HC (2024)

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1 - NC: 2024:KHC-K:1076 CRL.A No. 200071 of 2016

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 23^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL NO. 200071 OF 2016 (378)

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BETWEEN:

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STATE OF KARNATAKA THROUGH PSI RAICHUR LOKAYUKTA, NOW REPRESENTED BY, SPECIAL PUBLIC PROSECUTOR (LOKAYUKTA), HIGH COURT OF KARNATAKA, GULBARGA BENCH.

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…APPELLANT

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(BY SRI SUBHASH MALLAPUR, ADDL. SPP)

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AND:

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Digitally signed by SHILPA R TENIHALLI Location: HIGH COURT OF KARNATAKA

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MALLANAGOUDA S/O NINGANAGOUDA PATIL AGE: 55 YEARS, OCC: ASSISTANT EXECUTIVE ENGINEER, PANCHAYAT RAJ ENGINEERING SUB DIVISION, RAICHUR R/O LINGASUGUR.

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RAVINDRA H S/O JEEVAN RAO AGE:57 YEARS, OCC: SECRETARY GRAM PANCHAYAT, NAGALAPUR R/O LINGASUGUR.

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…RESPONDENTS

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(BY SRI SHIVANAND PATIL, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378 (1) & (3) OF THE CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 19-10-2015 PASSED IN SPL CASE NO.19/2011 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAICHUR WHEREBY ACQUITTING THE ACCUSED/RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 AND 13(1) (d) AND 13(2) OF THE P.C. ACT 1988, AND ETC.

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NC: 2024:KHC-K:1076 CRL.A No. 200071 of 2016

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

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JUDGMENT

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This appeal is filed by the State through Lokayukta challenging the judgment of acquittal passed by II Additional Sessions Judge/Special Judge, Raichur, in Spl.Case No.19/2011, dated 19.10.2015.

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For the sake of convenience the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are as under:

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The complainant is eking his livelihood by doing some contract work within the jurisdiction of Kannal Grama Panchayat. It is alleged that in the year 2009-2010 the Grama Panchayat Vyasa Nandihal has undertaken road work under Mahatma Gandhi Rural Development Scheme (MNREGA). It is alleged that for formation of concrete road from Vyasa Nandihal to Karemaradi at the cost of Rs.50,00,000/-, the formation of road work in Valmiki

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Extension at the cost of Rs.5,00,000/- and the formation of another road and drainage from Kumbar House to the main road was at the cost of Rs.2,00,000/- is undertaken. It is contended by the complainant that this work has been completed by complainant three months earlier to lodging of complaint and Government has released the sanctioned amount and it is credited to the Pragathi Grameen Bank, Mudgal Branch. It is alleged that the complainant approached Panchayat Raj, Engineering Sub-division for sanction of payment of the bills, but accused No.1 demanded amount at the rate of 5% totally amounting to Rs.37,500/-. However, complainant though not willing, in order to get the amount at the earliest reluctantly agreed and ten days earlier to 17.01.2011 he has paid Rs.30,000/- to accused No.1. It is alleged that in spite of receipt, accused No.1 has not released the amount pertaining to formation of the road and supply of materials by the complainant and he has demanded additional bribe amount of Rs.7,500/-. Hence, complainant is said to have approached Lokayukta on 19.01.2011 and lodged a oral

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complaint. It is alleged that voice recorder was given on 20.01.2011 for recording the conversation and on 21.01.2011, complainant contacted accused No.2 in his house and recorded the conversation. Then on 27.01.2011, he lodged a complaint against accused No.1.

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On the basis of the complaint, the Investigating Officer has drawn an entrustment panchnama pertaining to Rs.7,500/- produced by the complainant and trap was laid down. When they visited the office, accused No.1 asked them to come to his house and when they went to the house, he asked them to come to bus stand and when they went to bus stand, he said that as he was in hurry to go to Bangalore, directed them to pay the amount to accused No.2. Then the complainant along with shadow witness approached accused No.2 and paid the amount and accused No.2 accepted the bribe and a trap was held. It is also alleged that a trap mahazar was drawn, hand wash of accused No.2 was taken and his statement was also recorded and then the Investigating Officer after

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completing the investigation and after obtaining the sanction, submitted the charge sheet against the accused. The learned Special Judge has taken cognizance and then accused Nos.1 & 2 appeared and were enlarged on bail. The prosecution papers were furnished to them.

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To prove the guilt of accused, the prosecution has examined in all 13 witnesses and also placed reliance on 35 documents and 9 material objects. After conclusion of evidence of the prosecution, the statement of accused under Section 313 Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of accused is of total denial. Then the learned Special Judge after hearing the arguments and after appreciating the oral and documentary evidence, acquitted both the accused of the offences punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘PC Act’). Being aggrieved

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by this judgment of acquittal, the State is before this Court by way of this appeal.

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Heard the arguments advanced by the learned counsel for the appellant/State and learned counsel appearing for the respondent/accused. Perused the records.

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The learned counsel for appellant/State would contend that the complainant has supported the case of the prosecution though there are variances, but the tainted amount was recovered from custody of accused No.2 and the evidence of prosecution establishes that there was a demand and acceptance. He would contend that the learned Special Judge has erred in acquitting the accused without proper appreciation of the evidence on record. Hence, he would seek for allowing the appeal by convicting the accused/respondents.

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Per contra, the learned counsel for

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accused/respondents would contend that the evidence on record consists of inconsistencies and the recovery itself is

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not established. He would also contend that the evidence of Investigating Officer is not available and the other recovery Pancha has turned hostile, and evidence of shadow witness cannot be accepted as he is working in Lokayukta Office itself and admittedly, he is an interested witness. He would also assert that the evidence of complainant is inconsistent and the voice is also not identified and the view taken by the learned Special Judge is a possible view and hence, it cannot be disturbed. Hence, he would seek for dismissal of the appeal.

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Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration:

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“Whether the judgment of acquittal passed by the learned Special Judge is perverse, arbitrary and erroneous so as to call for any interference by this Court?”

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It is the specific contention of the prosecution that accused has demanded illegal gratification of Rs.37,500/- in order to favour the complainant regarding

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sanctioning the amount. Accused No.1 is admittedly Assistant Executive Engineer in Panchayat Raj Engineering Sub-division. Accused No.2 is the Secretary. Further, it is alleged that amount due was pertaining to the work executed under NAREGA scheme.

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At the outset, it is an undisputed fact that the amount was not recovered from the custody of accused No.1. The alleged amount was said to have been recovered from the custody of accused No.2 asserting that he has received the said amount at the instance of accused No.1. But on perusal of evidence, it is evident that there is no document to show that at the instance of accused No.1, accused No.2 has received the amount. Further, the voice of accused No.1 was not identified. The recovery mahazar witness PW2 has completely turned hostile. He did not support the case of the prosecution regarding the alleged recovery as asserted by prosecution, is from the custody of accused No.2. Though this witness was treated as hostile, when he was cross examined,

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nothing was elicited so as to impeach his evidence. PW3 is a shadow witness, but admittedly when his evidence was recorded, he was working as FDA in Lokayukta Office. As such, he naturally becomes an interested witness.

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PW4 has turned hostile and his evidence has no relevancy. Accordingly, evidence of PW5 does not assist the prosecution in proving the guilt as alleged. So also the evidence of PW6 would not assist the prosecution. PW7 has deposed regarding preparation of sketch as per Ex.P21. But the sketch is pertaining to ZP office and admittedly, no trap was held in the ZP office, but the trap was alleged to have been held in the house of accused No.2. PW8 is a Junior Engineer and he has also turned hostile. In the instant case, the entire case of the prosecution is based on evidence of PW11, who claims to have been accompanied the Investigating Officer. In the instant case, it is asserted that Investigating Officer is reported to be dead. But however, no death extract of the Investigating Officer is produced and PW11 has not

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identified his signatures on the mahazar to show that he was part of the team which has raided. Hence, only on the basis of his self interested testimony, it cannot be presumed that he has assisted the Investigating Officer.

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Now let us consider the evidence of complainant. Though he has deposed regarding accused demanding bribe amount and giving tape recorder, it is evident that, he initially recorded the conversation in his mobile. In that event, nothing prevented the Investigating Officer to register the crime when first time complainant approached him. Even the said voice recorder was said to have been converted into CD, but the voice of the accused was not identified by anyone. Though the complainant has treated this witness as hostile, but in the cross examination by learned Special PP, he has admitted certain aspects and denied certain aspects. His evidence discloses that he went on oscillating one end to other end. He admits that under NAREGA scheme the contract will not be issued to a third person and only the materials will

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be purchased. In his cross examination he admitted that no concrete road was sanctioned and no work was entrusted. He admitted that the Gram Panchayat releases the amount and the work cannot be entrusted by contract. He asserts that he supplied the raw materials, but what type of raw materials he has supplied is not at all fourth coming. His cross-examination further reveals that under NAREGA scheme the raw materials will be supplied from particular & identified shop and the amount will be directly paid to the shop. As such, in-between what is the role of the complainant is not at all forthcoming.

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Further his grievance is against accused No.1 and admittedly, accused No.1 is an Assistant Engineer and he did not have any authority to pass the bills. His duty is only to record the measurement of the work done and no documents were secured regarding this aspect. Further, when the work was not entrusted to the complainant, question of accused No.1 measuring work done by him does not arise at all and he admits that he was supposed

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to furnish raw materials. The furnishing raw materials does not fall within the ambit of accused No.1. Under such circumstances the entire evidence of complainant does not inspire the confidence of the court.

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All along, it is asserted that complainant has recorded the conversation on 17.01.2011 & 19.01.2011 as well as 21.11.2011. PW1 admitted that he has not at all recorded any conversation with accused No.1 at any point and he asserts that he recorded conversation with accused No.2.

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Further PW2 did not support the case of the prosecution regarding entrustment mahazar and seizure of the amount from possession of accused No.2. As observed above PW3 is working in Lokayukta Office itself and his evidence being interested evidence, it cannot be a ground for conviction. There is no evidence to show that complainant was given any work order for supply of raw materials for entrustment of work under NAREGA scheme. Further, when his duty is to supply only raw materials,

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question of he contacting accused No.1 does not arise at all, as accused No.1 is only required to record the measurement of work done by endorsing the same in measurement book and bill is to be prepared by accused No.2 on approval of panchayat, but no such approval is forthcoming. Further, PW1 claims to have supplied the materials, but the evidence on record discloses that the material cost would be directly paid to the concerned shop owner through account cheque. Hence, in what capacity accused has demanded the amount is not at all forthcoming. On the contrary, the evidence on record discloses that his mother was Vice President of Panchayat earlier. This clearly disclose that he is interested in the panchayat in one way or other. The recovery of the tainted amount from accused No.2 itself is not established, as PW1 is taking inconsistent stands, while PW2 did not support these aspects. As observed above, the evidence of Investigating Officer is also not available.

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Apart from that, the evidence of PW3 discloses that he has visited Lokayukta Office on the next date of trap and his signatures were obtained on several mahazars. If this conversation is accepted, then it is evident that mahazar was not drawn on the date of trap, but subsequently, it was prepared which is very fatal to the case of the prosecution. Even the Investigating Officer has not got prepared sketch of the spot where the alleged trap was laid down. Even PW 8 did not identify the voice of accused. All these facts and circumstances clearly establish that the prosecution has failed to prove the demand and acceptance of gratification. The entire case of the prosecution is based on surmises and PW1 himself is interested in getting some work of the Panchayat illegally, though he is not competent and admittedly, he is not a registered contractor as admitted by him. His case regarding supply of materials cannot be accepted as there is no evidence as to what qty of material was supplied by him, from where he has purchased, what was the quotation submitted by him etc.,

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The learned Special Judge considered all these aspects in proper perspective and has rightly acquitted the accused. No perversity or illegality is found in the judgment of acquittal. Considering the evidence lead by the prosecution, the view taken by the learned Special Judge is also a possible view. Under such circumstances, the said view cannot be disturbed by this Court by taking a different view. Even the different view is also not possible in this case, in view of the evidence on record. Considering these facts & circumstances, I am constrained to answer the point under consideration in the negative. As such, the appeal being devoid of any merits does not survive for consideration and accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal stands dismissed.

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Sd/JUDGE

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DS List No.: 1 Sl No.: 34

State of Karnataka v. Mallangouda S/O Ningangouda Patil and Anr.

Case brief

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State of Karnataka v. Mallangouda S/O Ningangouda Patil and Anr.

Case brief

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