S Gopal S/O Palakappa Vs State by Lokayuktha Police

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:31.12.11 PASSED BY THE DIST., AND S.J., CHICKBALLAPUR IN PCA CC.NO.3/07 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7, 13(D) R/W SEC.13(2) OF PREVENTION OF CORRUPTION ACT, 1988. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR ONE YEAR FOR THE OFFENCE P/U/S 7 OF PREVENTION OF CORRUPTION ACT, 1988 AND ALSO PAY FINE OF RS.5,000/- IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO S.I. FOR 6 MONTHS. AND THE

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APPELLANT/ACCUSED FURTHER SHALL UNDERGO S.I. FOR 2 YEARS FOR THE OFFENCE P/U/S 13(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. AND ALSO SHALL PAY FINE OF RS.10,000/- IN DEFAULT HE SHALL UNDERGO S.I. FOR ONE YEAR. BOTH SENTENCES SHALL RUN CONCURRENTLY.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The accused in PCA CC.No.3/2007 on the file of the learned District and Sessions Judge at Chikkaballapur, is impugning the Judgment of Conviction and Order of Sentence dated 31.12.2011, convicting him for the offences punishable under Sections 7, 13(d) read with Section 13(2) of Prevention of Corruption Act (for short, "the PC Act") and sentencing to undergo simple imprisonment for a period of one year, and to pay fine of Rs.5,000/- for the offence punishable under Section 7 of P.C. Act, and to undergo simple imprisonment for a period of two years and to pay fine of Rs.10,000/- for the offence punishable under Section 13(d) read with 13(2) of P.C. Act, with default sentences.

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Brief facts of the case as made out by the prosecution are that, the accused was working as Revenue Inspector in the Taluka Office. The informant filed an application seeking mutation of his name in the revenue records in respect of the land purchased by him under the registered Sale Deed. Since the said application was pending before the accused, the informant met the accused and requested for effecting mutation. The accused demanded Rs.20,000/- and received Rs.7,000/-. On 08.09.2006, he demanded the balance amount of Rs.13,000/- to be paid before effecting mutation. Since the informant was not interested in paying the illegal gratification, he filed the first information with the Lokayukta Police as per EX.P1. The FIR came to be registered and the pre-trap panchanama was drawn in the presence of two independent witnesses. The tainted amountMO5 was entrusted to PW1, smeared with phenolphthalein powder, with an instruction to meet the accused along with the shadow witness and if in case, the accused demands for illegal gratification, to pay the said amount. Accordingly, the informant along with the shadow witness met the accused in his office, where he demanded the balance amount of

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Rs.13,000/-. When the complainant tendered the tainted amount, the accused received the same and kept it in his shirt pocket. Thus, the accused had committed the offences as stated above.

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It is the further contention of the prosecution that, the informant gave signal to the Investigating Officer, who came to the spot along with the pancha witness, hand wash of the accused was taken in the sodium carbonate solution, which turned into pink colour, and the samples were seized. The accused was asked to produce the tainted amount. Accordingly, he produced MO5 - Rs.13,000/- from his shirt pocket. Part of the shirt pocket was washed in sodium carbonate solution, and sample along with the shirt was seized. Thus, the trappanchanama was drawn. Explanation from the accused was obtained as per Ex.P5. The case papers were collected. After investigation, the charge sheet came to be filed for the above said offences.

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The special court took cognizance for the above said offences and summoned the accused to appear before the Court. The accused appeared before the Court, pleaded not

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guilty and claimed to be tried. Prosecution examined PWs.1 to 8, got marked Exs.P1 to 16, and identified MOs.1 to 9 in support of its contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.PC, but has not chosen to led any evidence in support of his defence. But, got marked Exs.D1 to D13 during cross-examination of the prosecution witnesses. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, the impugned Judgment of Conviction and Order of Sentence came to be passed. Being aggrieved by the same, the accused has approached this Court by filing the present appeal.

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Heard Sri. Y.R. Sadasiva Reddy, learned Senior Advocate for Sri. Rahul S.Reddy, learned counsel for the appellant and Sri. B.S.Prasad, learned counsel for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

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My answer to the above point is in 'Partly Affirmative' for the following:

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REASONS

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It is the specific contention of the prosecution that, the accused was working as Revenue Inspector in Taluka Office, and he is a public servant. This fact is not in dispute, rather it is admitted. It is the further contention of the prosecution that, PW1 has submitted an application seeking mutation of his name in revenue record in respect of Sy.Nos. 133 and 134 of Mandikal Hobli, Yalagahalli Village, Chikkaballapura Taluk, measuring 1.13 acre and 2.15 acre respectively. He had met the accused seeking change of katha. It is at this stage, on 08.09.2006, the accused being the Revenue Inspector has demanded Rs.20,000/illegal

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gratification to show the official favour and accepted Rs.7,000/on the same day. However, he demanded the balance amount of Rs.13,000/- to be paid. Accordingly, on the date of incident i.e., on 11.09.2006 when the complainant met the accused along with the shadow witness, the accused again demanded the illegal gratification and accepted Rs.13,000/- and kept in his shirt pocket. Thus, the accused has committed the offence punishable under Sections 7, 13(d) read with Section 13(2) of PC Act.

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To prove its contention, the prosecution examined PW1- the informant himself. He has deposed before the Court in detail about the contention taken by the prosecution. He spoke about the initial demand of Rs.20,000/-, payment of Rs.7,000/- on 08.09.2006 and the demand by the accused for the balance amount of Rs.13,000/- to effect the mutation. It is only thereafter, the first information came to be filed on 11.09.2006. FIR came to be registered, pre-trap panchanama was drawn entrusting MO5 - currency notes to the informant with an instruction to meet the accused along with the shadow witness. PW1 also states that, as per the instructions by the Investigating Officer, he met the accused in his office along

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with the shadow witness and enquired about the mutation entry. The accused demanded illegal gratification, and received the tainted amount of Rs.13,000/- and kept it in his shirt pocket. Immediately, he gave signal to the Investigating Officer who came to the spot along with pancha witness.

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PW1 has also stated regarding drawing of trappanchanama, hand wash of the accused, recovery of the tainted amount from the shirt pocket of the accused, taking the explanation from the accused as per Ex.P5 etc., PW1 was cross-examined by the learned counsel for the accused in detail. It is suggested that, he had filed an application as per Ex.D2 dated 17.06.2006. He denied the suggestion that, such an application was rejected by the accused. He states that, while going to meet the accused, he was entrusted with the tape recorder and the conversation was recorded in the tape recorder, which is as per MO9. Strangely, it is suggested to PW1 that, he had paid Rs.13,000/- to the accused as loan. This suggestion was denied by the witness. It is also suggested that since there was a public function organized on 12.09.2006, in order to prevent the accused from participating in the function, a false complaint was filed. The said suggestion is also denied

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by PW1. It is pertinent to note that, a fatal suggestion is put to PW1 that, the accused while accepting the amount from PW1, had informed that the file pertaining to PW1 will be attended on priority. This suggestion is also denied by PW1. But the fact remains that, such fatal suggestion suggested by the learned counsel for the accused binds the accused and it goes to the root of the matter. Nothing is elicited from PW1 to disbelieve his version, or to disbelieve the version of the prosecution with regard to pendency of work, demand and acceptance of illegal gratification by the accused.

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PW2 - the village accountant, was working under the accused. During chief- examination, he categorically stated that he learnt from the Lokayukta Police, that the accused was trapped and he was apprehended and thereafter, handed over the case file to the Investigating Officer which is as per Ex.P7. The cross-examination of this witness was deferred. During cross-examination on a later date, the witness stated that, initially the application was filed by PW1, Form No.12 and 21 were generated through computer, and the file was forwarded to the Revenue Inspector i.e., the accused, who in-turn forwarded it to the village accountant for publication of notice,

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calling for objection and after 30 days if the objections are received, the same would be forwarded to Revenue Inspector treating it a disputed application. Strangely, this witness stated that, earlier an application was filed by PW1 and produced as per Ex.D1, which is said to be the order rejecting the application submitted by PW1. This document is only a copy and therefore, the same was marked subject to objection. If at all, there was such an order passed in the public office, nothing prevented the accused from producing the authentic copy of the order and to produce the same.

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In the later part of cross-examination, it is elicited from PW2 that 'Janasamparka Sabhe' was scheduled to be held on 12.09.2006 for which, they have contributed their one month's salary, and even then, they could not arrange the function with the limited resources available with them. PW1 voluntarily paid Rs.13,000/- for organizing Janasamparka Sabhe. This evidence cannot be accepted even for a moment, as in chief-examination, he specifically stated that, he came to know about the trap of the accused only after his apprehension, and when the Lokayukta police contacted him and asked him to produce the case papers. But in the cross-examination, it is his

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evidence that, he was with the accused when PW1 paid Rs.13,000/- for organizing Janasamparka Sabhe. It is strange to note that even though PW1 was cross examined at length, it was not even suggested to the witness that he paid Rs.13,000/voluntarily for the purpose of organizing Janasamparka Sabhe. Under such circumstances, the evidence elicited from PW2 will not enure to the benefit of the accused, since the cross-examination of PW2 was deferred by the Trial Court, and the witness appears to have deviated to depose in favour of the accused, and such defence was never suggested to PW1 to probabalize the defence of the accused. Hence, I am not inclined to accept the evidence of PW2 with regard to PW1 paying Rs.13,000/- voluntarily to the accused in the presence of PW2, only for the purpose of organizing Janasamparka Sabhe.

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Ex.P5 is the explanation given by the accused in his own hand-writing at the earliest point of time i.e., immediately after his apprehension. In Ex.P5, the accused admits pendency of work, and filing of the application for mutation by PW1 and states that, he had demanded the amount from PW1 for meeting the expenses of Janasamparka Sabhe. Even in this

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explanation, the accused does not say that PW1 paid the amount voluntarily.

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Even if the defence taken by the accused is to be accepted that, PW1 paid the amount of Rs.13,000/- voluntarily for the purpose of organizing Janasamparka Sabhe, the same will not enure to the benefit of the accused, as the accused being the public servant is not suppose to accept any amount or funds from the general public as it amounts to misconduct. Admittedly, there was no authorization to the accused to collect such amount from the general public. If a Janasamparka Sabhe

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is to be organized, it is to be organized by the Deputy Commissioner of the District with the State fund, but the same cannot be organized by permitting a public servant to demand and accept amount from the general public.

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In the present case, when admittedly the application filed by PW1 for mutation was pending with the accused, the accused demanding and accepting the amount is also admitted, now the same cannot be termed as voluntary funding by PW1 for organizing a public function. If such defence is to be accepted by the Court of law, it will lead to open acceptance of giving money to the public servants on one

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pretext or the other, which will defeat the very object with which, the PC Act was enacted. Accused, being the public servant is bound by the Rules that are governing his service, which do not permit him to accept any money from the public while discharging his duty. Therefore, I am not inclined to accept the defence taken by the accused in that regard.

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It is contented by the learned counsel for the appellant that the shadow witness is not examined and therefore, the only evidence of PW1 cannot be accepted. The order sheet of the Trial Court discloses that when the summons was issued to the shadow witness, the same was returned unserved as the witness is already dead. Under such circumstances, the shadow witness was not examined, but he was not deliberately withheld by the prosecution. When the accused in unequivocal terms admits demanding and accepting of Rs.13,000/- from PW1 and even the recovery of the said amount from his shirt pocket is admitted, non-examination of any other witness to corroborate PW1 is not fatal to the case of the prosecution. Even if the defence taken by the accused is to be accepted, it amounts to misconduct and thus, the prosecution is successful in proving the guilt of the accused for

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the offence punishable under Sections 7, 13(d) read with Section 13(2) of PC Act and he is liable for conviction.

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I have gone through the impugned judgment of conviction passed by the Trial Court. The Trial Court has appreciated the materials on record, and has arrived at a right conclusion and convicted the accused. I do not find any reason to interfere with the same.

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At this stage, learned counsel for the appellant submits that the offence in question was committed during 2006. Now the accused is aged 72 years and he is suffering from various ailments. Therefore, he prays for showing leniency in sentencing the accused.

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The Trial Court had sentenced the accused to undergo simple imprisonment for a period of one year with fine of Rs.5,000/- for the offence punishable under Section 7 of P.C. Act, and to undergo simple imprisonment for a period of two years with fine of Rs.10,000/- for the offence punishable under Section 13(d) read with 13(2) of P.C. Act, with default sentences.

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As per the PC Act, the minimum sentence that could be imposed to the accused for the offence punishable under

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Section 7 of PC Act is six months, and for the offence punishable under Sections 13(1)(d) read with 13(2) of PC Act is one year. I do not find any reason to impose higher punishment on the accused. Under such circumstances, I am of the opinion that the order of sentence passed by the Trial Court could be modified by imposing minimum sentence. Accordingly, I proceed to pass the following:

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ORDER

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(i) Criminal appeal is allowed in part.

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(ii) The Judgment of Conviction dated 31.12.2011 passed in PCA CC.No.3/2007, on the file of the learned District and Sessions Judge at Chikkaballapur, is hereby confirmed.

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(iii) The order of sentence passed by the Trial Court is modified as under:

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(a) The appellant - accused is sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 7 of PC Act and to undergo simple imprisonment for a period of one year for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Ac.

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(b) The other portion of the order of sentence shall remain as it is.

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Registry to send back the Trial Court records along with copy of this judgment for information and needful action i.e., to secure the presence of the accused to issue conviction warrant, if not already issued.

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Sd/(M G UMA) JUDGE

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MKM, SPV CT:VS List No.: 1 Sl No.: 14

S Gopal S/O Palakappa v. State by Lokayuktha Police

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S Gopal S/O Palakappa v. State by Lokayuktha Police

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