Sri S M Byregowda S/O S Muniswamy Gowda Vs State of Karnataka

1 . STATE OF KARNATAKA BY POLICE INSPECTOR, POLICE WING, CITY DIVISION, KARNATAKA LOKAYUKTA BANGALORE -560 001 BY :STATE PUBLIC PROSECUTOR FOR KARNATAKA LOKAYUKTA HIGH COURT BUILDING COMPLEX, BANGALORE -560 001

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…RESPONDENT (BY SRI VENKATESH S. ARABATTI, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 30.7.11 PASSED BY THE SPL.JUDGE, PREVENTION OF CORRUPTION ACT, B'LORE URBAN DISTRICT, B'LORE IN SPL.C.C.NO.34/05-CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 7 OF PREVENTION OF

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CORRUPTION ACT AND SEC.13(1)(d) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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Appeal is filed by the accused who has suffered an order of conviction in Spl.C.C.No.34/2005 by judgment dated 30.07.2011 on the file of Special Judge, Bangalore Urban District, Bangalore City for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

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Facts in the nutshell which are necessary for disposal of the appeal are as under:

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2.1. An application was filed by an association

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known as Dakshina Kannada District Ex. Servicemen Association, Mangalore praying for five cents of the land for construction of the building of the association. Said request was pending for last 15 to 20 years but the file

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was not cleared by the concerned department. Finally, five cents of the land in Sy.No.19/A of Attavara Village , Mangaluru Taluk was ear marked pursuant to the request made by the Association. Application was favorably recommended by the Deputy Commissioner, Mangalore vide letter dated 15.11.2002 and said recommendation reached the office of the accused. Application was not further processed for a period of two years and after repeated reminders and follow up made by the office bearers of the association, file was sent to the Government on 13.02.2003. Accused being the concerned person in the Secretariat, who had to further process the matter, has demanded sum of Rs.35,000/- as bribe amount to process the file and demanded sum of Rs.500/- to himself and Rs.100/- to the lady attender to move the file to the next table. There was also a demand of Rs.20,000/- as first installment out of the total bribe amount to be paid.

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2.2. Complainant was not interested in parting away with the said bribe amount and therefore, he gave sum of Rs.500/- to the accused and sum of Rs.100/- to the

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lady attender on 13.02.2004 and addressed a letter to the Principal Secretary regarding demand of the bribe amount informing the Principal Secretary that he would arrange the said money in order to get the accused trapped.

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2.3. A case came to be registered in Crime No.07/2004 for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,1988. Thereafter, accused was successfully trapped on 10.03.2004 and he was arrested.

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After thorough investigation, charge sheet came to be filed by the Lokayuktha Police, Bengaluru alleging that accused demanded bribe of Rs.35,000/- in the form of Rs.20,000/- as first installment for clearing the file of the complainant in respect of grant of the land for construction of the building at Attavara Village, Mangalore.

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Presence of the accused was secured and charges were framed. Accused pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the accused, prosecution examined six witnesses as P.W.1 to 6 and placed on record thirty three documents which were exhibited and marked as Exs.P.1 to P.33 and fourteen material objects were marked as M.O.1 to 14.

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On conclusion of recording of the prosecution evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded wherein, accused has denied all the incriminatory circumstances.

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He has furnished a written submission and filed an application under Section 233 of Cr.P.C. producing the notification. Same was taken on record.

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Later on, learned Special Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced him as under:

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“It is ordered that the Accused S.M.Byregowda, is sentenced to undergo Rigorous imprisonment for a

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period of 6 months for the offence punishable under Section 7 of the Prevention of Corruption Act and to pay fine of Rs.5,000/- (Rupees fine thousand) in default to undergo simple imprisonment for 3 months and the accused is further sentenced to undergo Rigorous imprisonment for a term of 1½ for offence defined under Section 13(1)(d) which is punishable under Section 13(2) of Prevention of Corruption Act and to pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo simple imprisonment for 6 months.

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The substantive sentences of imprisonment shall run concurrently.

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MO.5 Currency notes Rs.500 X 40 = Rs.20,000/- shall be confiscated to the State Government and Mos.1 to 4 and 6 to 13 shall be destroyed after the expiry of appeal period and MO.14 metal seal shall be returned to the Lokayukta after appeal period is over.”

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Being aggrieved by the same, accused is

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before this Court, in this appeal on following grounds:

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The judgment and order passed by the court below is opposed to law, facts and circumstances of the case and the same is liable to be set aside by this Hon’ble Court.

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The court below erred in not considered the crossexamination of the prosecution witnesses and only on the basis of the examination-in-chief the learned judge has convicted the appellant.

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The court below erred in convicting the appellant only on the basis of improvement evidence given by the prosecution witnesses.

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The court below erred in not considered the facts that as on the date of alleged incident there was no Government to considered the file of granting the land to the complainant’s Association and also a guide lines by the Cabinate that government lands should not be granted to any Association and there is no question of keep pending the file.

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Sri.C.M.Kempegowda, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that impugned judgment is based on surmises and conjectures without there being any basic material evidence on record resulting in miscarriage of justice and sought for allowing the appeal.

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He pointed out that the sanction order is invalid as draft sanction order was furnished to the sanctioning authority and there is no independent appreciation of the material on record before issuing sanction order marked at Ex.P.1.

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He further pointed out that tainted money was thrusted into the pant pocket of the appellant which fact has been brought out in the cross-examination of the

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prosecution witnesses and learned Special Judge has failed to appreciate the same and wrongly convicted the appellant.

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He also pointed out that appellant could not have finished the processing of the file of the complainant as admittedly, there was code of conduct on the account of declaration of assembly elections which has been admitted by the prosecution witnesses. Therefore, question of appellant demanding illegal gratification for processing the file of the complainant by misusing his official position would not arise and said aspect of the matter is not at all appreciated by learned Special Judge in the impugned judgment and sought for allowing the appeal.

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Per contra, while supporting the impugned judgment, Sri.Venkatesh S. Arabatti, learned counsel for the respondent/Lokayukta vehemently contended that validity of the sanction order cannot be questioned by the appellant in view of the suggestions that has been made in the cross-examination of the sanctioning authority.

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He also pointed out that very content of the sanction order to prosecute the appellant itself shows that there is sufficient application of mind by the sanctioning authority before issuance of the sanction order.

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He further pointed out that accepting the bribe is not an official duty and therefore, appellant cannot take shelter under the validity of the sanction order and thus, sought for dismissal of the appeal.

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He further pointed out that if the money is actually thrusted into the pant pocket, colour test would not have resulted in positive and very fact that colour test stood positive shows that appellant has handled the tainted currency which has been established by oral and documentary evidence placed on record by the prosecution. More so, trap has taken in the public park. Thus, sought for dismissal of the appeal.

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Insofar as third point on which the impugned judgment is attacked on behalf of the appellant is mainly the application of the complainant could not have been

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processed by the appellant on account of prevailing code of conduct of assembly elections is nothing but an escape route adopted by the appellant to somehow get rid of the rigors of law inasmuch as application was pending for more than two years and there was no code of conduct for period of two years. As such, impugned judgment needs to be confirmed by dismissing the appeal.

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Having heard the parties in detail, this court perused the material on record meticulously.

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On such perusal of the material on record, following points would arise for consideration:

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i. Whether the appellant makes out a case that the sanction order to prosecute the appellant issued at Ex.P.1 is invalid and thus, trial stood vitiated?

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ii. Whether the material evidence placed on record on behalf of the prosecution is sufficient enough to maintain the order of conviction for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988?

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iii. Whether the appellant makes out a case that impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

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iv. Whether the sentence is excessive?

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v. What order?

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REG.POINT No.1:

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To prove the validity of the sanction order, prosecution examined the sanctioning authority as P.W.1. In his oral testimony, he deposed that pursuant to the letter received from Inspector General of Police, Lokayukta to issue sanction order to prosecute Sri.S.M.Byregowda – FDA working in Land And Revenue Department (Appellant).

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He further deposed that when the file was placed before him, he perused the FIR, complaint, pre-trap mahazar, trap mahazar, statement of witnesses, chemical examination report and sketch.

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He further deposed that after being satisfied with the other material on record, there was a typographical error which has been noticed by him and after verifying the records, he was satisfied with the case papers whereby there was a sufficient ground for according

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sanction to prosecute the appellant and as such, he issued the sanction order vide Ex.P.1 and corrigendum vide Ex.P.2.

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In his cross-examination, he has answered that he is acquainted with Kannada language in both reading and writing. He admits that among the enclosures that were sent to him, proforma sanction order was also sent and same was available in his file. Proforma sanction order was taken out from the file which has been brought by P.W.1 and it was marked as Ex.D.1 which consisted of three sheets.

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He denied the suggestion that there was no independent application of mind by P.W.1 and he has signed Ex.P.1 and 2 based on the draft prepared by his sub-staff. He admits that accused was not competent to grant Government land. He also admits that he has not mentioned in sanction order that he dictated the contents of Ex.P.1 but he has volunteered to say that said fact is found from note sheet. He admits that he has not read a

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book called ‘®AZÀ ¤gÉÆÃzsÀ PÁAiÉÄÝ’. He denied the suggestion

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that he has issued the sanction order mechanically and blindly.

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26. Contents of Ex.P.1 reads as under:

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D¥Á¢vÀ ²æÃ J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (CªÀiÁ£ÀwÛ£À°è), PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ CªÀgÀÄ ¦AiÀiÁðzÀÄzÁgÀgÁzÀ ²æÃ PÉ.ªÀÄxÁ¬Ä, ªÀÄAUÀ¼ÀÆgÀÄ, CªÀjAzÀ zÀQët PÀ£ÀßqÀ f¯Éè ªÀiÁf ¸ÉÊ¤PÀgÀ ¸ÀAWÀPÉÌ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ CvÁÛªÀgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA:19J AiÀÄ°è 0.5 JPÀgÉ d«ÄÃ£À£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä ¢:13.02.2004gÀAzÀÄ gÀÆ.35,000/UÀ¼À CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉUÁV MvÁÛ¬Ä¹zÀÄÝ CzÀgÀ°è gÀÆ.500/UÀ¼À£ÀÄß CAzÉÃ ¦AiÀiÁðzÀÄzÁgÀjAzÀ ¥ÀqÉzÀÄ gÀÆ.100UÀ¼À£ÀÄß PÀbÉÃjAiÀÄ ªÀÄ»¼Á CmÉAqÀgïUÉ PÉÆr¹ ®AZÀzÀ ºÀtzÀ ªÉÆzÀ®£É PÀAvÁV gÀÆ.20,000/- UÀ¼À£ÀÄß PÉ®ªÀÅ ¢£ÀUÀ¼À°è PÉÆqÀÄªÀAvÉ w½¹zÀÄÝ ¦AiÀiÁð¢AiÀÄÄ ®AZÀzÀ ºÀtªÀ£ÀÄß PÉÆqÀ®Ä §AiÀÄ¸ÀzÀ PÁgÀt ¸ÀzÀj ¸ÀPÁðj £ËPÀgÀgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆ¼ÀÄîªÀ §UÉÎ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉÆÃ°Ã¸ÀjUÉ zÀÆgÀ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ.

¶105

¸ÀzÀj zÀÆj£ÀAvÉ vÀ¤SÁ¢üPÁjUÀ¼ÀÄ §¯É ©Ã¸ÀÄªÀ ªÉÆzÀ°£À J¯Áè OavÀå¥ÀÆtð PÁAiÀÄðPÀæªÀÄUÀ¼À£ÀÄß £ÉgÀªÉÃj¹zÀ £ÀAvÀgÀ ¢:10.03.2004gÀAzÀÄ PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄzÀ°è ©Ã¹zÀ mÁæ¥ï §¯ÉAiÀÄÄ AiÀÄ±À¹éAiÀiÁV ²æÃ J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ PÀAzÁAiÀÄ E¯ÁSÉ, PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ, CªÀgÀÄ CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀiÁzÀ gÀÆ.20,000UÀ¼À£ÀÄß ¸ÀzÀj ¸ÀPÁðj PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀ®Ä PÉÃ½ ¥ÀqÉAiÀÄÄwÛzÁÝUÀ ¹QÌºÁQPÉÆArgÀÄvÁÛgÉ. D¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀ£À §®UÉÊ ªÀÄvÀÄÛ JqÀUÉÊ ¨ÉgÀ¼ÀÄUÀ¼À£ÀÄß ºÁUÀÆ D¥Á¢vÀgÀÄ zsÀj¹zÀÝ ¥ÁåAn£À §®¨sÁUÀªÀ£ÀÄß ¸ÉÆÃrAiÀÄA PÁ¨ÉÆÃð£ÉÃmï zÁæªÀtzÀ°è ªÀiÁdð£É ªÀiÁr ¦ü£Á¥ÀÛ°Ã£ï ¥ÀjÃPÉëUÉ M¼À¥Àr¹zÁUÀ CzÀÄ ¸ÀPÁgÁvÀäPÀªÁV ¥ÀæwPÀæ¬Ä¹zÀÄÝ, gÀ¸ÁAiÀÄ¤PÀ vÀdÕgÀ ¥ÀjÃPÁë ªÀgÀ¢¬ÄAzÀ®Æ ¸ÀºÀ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ. £ÉgÀ¼ÀÄ ¸ÁQëAiÀÄÄ CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀÄ ¨ÉÃrPÉ ªÀÄvÀÄÛ ¥ÀqÉAiÀÄÄ«PÉUÉ ¸ÀA¨sÀA¢ü¹zÀAvÉ ¦AiÀiÁð¢ ºÁUÀÆ C¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀgÀ £ÀqÀÄ«£À ªÀåªÀºÁgÀªÀ£ÀÄß UÀªÀÄ¤¹gÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀA¨sÁµÀuÉAiÀÄ£ÀÄß D°¹gÀÄvÁÛgÉ. CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀiÁzÀ gÀÆ.20,000/-UÀ¼À£ÀÄß ²æÃ J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ, CªÀjAzÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ¨ÉAUÀ¼ÀÆj£À PÉ.Dgï.¸ÀPÀð¯ï ¥ÀPÀÌzÀ°ègÀÄªÀ ²æÃ PÀÈµÀÚgÁeÉÃAzÀæ ¹®égÀ dÆå©è vÁAwæPÀ ªÀÄºÁ«zÁå®AiÀÄzÀ ªÀÄÄAzÉ «±ÉéÃ±ÀégÀAiÀÄå ¥ÀæwªÉÄ EgÀÄªÀ aPÀÌ ¥ÁPïð£À°è ªÀ±À¥Àr¹PÉÆ¼Àî¯ÁVzÉ.

¶106

16

¶107

CzÀgÀAvÉ F ¥ÀæPÀgÀtPÉÌ ¸ÀA§A¢ü¹zÀ vÀ¤SÁ zÁR¯ÉUÀ¼ÁzÀ ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢, mÁæ¥ï ¥ÀÆªÀðzÀ ªÀÄºÀdgï mÁæ¥ï £ÀqÀªÀ½UÀ¼ÀÄ, ¸ÁQëUÀ¼À ºÉÃ½PÉUÀ¼ÀÄ, gÁ¸ÁAiÀÄ¤PÀ ¥ÀjÃPÀëPÀgÀ ªÀgÀ¢, mÁæ¥ï ¸ÀÜ¼ÀzÀ £ÀPÉë ªÀÄvÀÄÛ vÀ¤SÁ¢üPÁjAiÀÄ CAwªÀÄ ªÀgÀ¢UÀ¼ÀÄ C¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀ£À «gÀÄzÀÝ EgÀÄªÀ C¥ÁzÀ£ÉUÀ¼À£ÀÄß ¸ÀªÀÄyð¸À®Ä ¤uÁðAiÀÄPÀ ¸ÁPÀëöåUÀ¼ÁVgÀÄvÀÛªÉ. £ÉgÀ¼ÀÄ ¸ÁQëAiÀiÁzÀ ²æÃ JA.«.GªÉÄÃ±À gÀªÀgÀÄ mÁæ¥ï ¥ÀAZÀ£ÁªÉÄAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è ¦AiÀiÁðzÀÄzÁgÀgÀ eÉÆvÉ DgÉÆÃ¦vÀ C¢üPÁjAiÀÄªÀgÀ PÀbÉÃjUÉ ºÉÆÃVzÀÄÝ ¦AiÀiÁðzÀÄzÁgÀgÀÄ ªÀÄvÀÄÛ DgÉÆÃ¦vÀ £ËPÀgÀgÀ £ÀqÀÄªÉ £ÀqÉzÀ ªÀiÁvÀÄUÀ¼À£ÀÄß PÉÃ½¹PÉÆAqÀÄ WÀl£ÉAiÀÄ£ÀÄß «ÃQë¹zÀÄÝ, DgÉÆÃ¦vÀ £ËPÀgÀgÀÄ ¦AiÀiÁðzÀÄzÁgÀgÁzÀ ²æÃ PÉ.ªÀÄxÁ¬Ä CªÀjAzÀ zÀQët PÀ£ÀßqÀ f¯Áè ªÀiÁf ¸ÉÊ¤PÀgÀ ¸ÀAWÀPÉÌ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ CvÁÛªÀgÀ UÁæªÀÄzÀ ¸ÀªÉÃð £ÀA:19J £À°è 0.5 JPÀgÉ d«ÄÃ£À£ÀÄß ¸ÀzÀj ¸ÀAWÀPÉÌ ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä ®AZÀzÀ ºÀtªÀ£ÀÄß PÉÃ½ ¥ÀqÉ¢gÀÄªÀÅzÀ£ÀÄß zÀÈqÀ¥Àr¹gÀÄvÁÛgÉ. JgÀqÀ£ÉÃ ¸ÁQëzÁgÀgÁzÀ ²æÃ JA.«dAiÀÄPÀÄªÀiÁgï CªÀgÀÄ ¥ÁæAiÉÆÃVPÀ ¥ÀAZÀ£ÁªÉÄ ¸ÀªÀÄAiÀÄzÀ°è ¦ü£Á¥ÀÛ°£ï ¥ÀÄrAiÀÄ£ÀÄß ¯ÉÃ¥À£À ªÀiÁrzÀ £ÉÆÃlÄUÀ¼À£ÀÄß JtÂ¹zÀ §UÉÎ ¸ÉÆÃrAiÀÄA PÁ¨ÉÆÃð£ÉÃmï zÁæªÀtzÀ°è PÉÊUÀ¼À£ÀÄß vÉÆ½¹zÀ §UÉÎ ¥ÀæPÀgÀtzÀ mÁæ¥ï ¸ÀªÀÄAiÀÄzÀ°è ªÀ¸ÀÄÛUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ªÀiÁrPÉÆAqÀ ªÉÆºÀgï ªÀiÁqÀ®Ä G¥ÀAiÉÆÃV¹zÀ ¹Ã®£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀÄªÀ §UÉÎ ¥ÀAZÀ£ÁªÉÄ «µÀAiÀÄªÀ£ÀÄß w½zÀÄPÉÆArgÀÄªÀ §UÉÎ zÀÈqsÀ¥Àr¹gÀÄvÁÛgÉ.

¶108

F J¯Áè PÁgÀtUÀ½AzÀ D¥Á¢vÀgÀÄ ®AZÀ ¤gÉÆÃzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7, 13(1)(r) eÉÆvÉ NzÀ¯ÁzÀ PÀ®A 13(2)gÀrAiÀÄ°è ²PÁëºÀð C¥ÀgÁzsÀªÀ£ÀÄß J¸ÀVgÀÄªÀÅzÀÄ ªÉÄÃ¯ÉÆßÃlPÉÌ £À£ÀUÉ ¸ÀA¥ÀÆtðªÁV ªÀÄ£ÀªÀjPÉAiÀiÁVzÉ. DzÀÝjAzÀ EªÀgÀ£ÀÄß ®AZÀ ¤gÉÆÃzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7,13(1)(r) eÉÆvÉ NzÀ¯ÁzÀ PÀ®A 13(2)gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉ M¼À¥Àr¸ÀÄªÀÅzÀÄ CªÀ±Àå JAzÀÄ £Á£ÀÄ ªÀÄ£ÀUÀArzÉÝÃ£É.

¶109

1957gÀ PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉÃªÁ (¹¹J) ¤AiÀÄªÀiÁªÀ½AiÀÄ 9(2)(¹) ¤AiÀÄªÀÄzÀr PÉ®¸À¢AzÀ vÉUÉzÀÄ ºÁPÀ®Ä ¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀiÁzÀ £Á£ÀÄ C¢üPÁgÀªÀÅ¼ÀîªÀ£ÁVgÀÄvÉÛÃ£É. DzÀÝjAzÀ ®AZÀ ¤gÉÆÃzÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 19(1)(¹) Cr C¥Á¢vÀ £ËPÀgÀ ²æÃ J¸ï.JA ¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ, (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ EªÀgÀ£ÀÄß PÀ®A 7 ªÀÄvÀÄÛ 13(1)(r) eÉÆvÉUÉ 13(2)gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉ M¼À¥Àr¸À®Ä ªÀÄAdÆgÁw ¤ÃqÀÄªÀ C¢üPÁgÀªÀ£ÀÄß £Á£ÀÄ ºÉÆA¢gÀÄvÉÛÃ£É.

¶110

DzÉÃ±À ¸ÀA: ¹C¸ÀÄE 07DPÉÆÃE 2004 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ :22.01.2005.

¶111

¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀÄªÀ »£Éß¯ÉAiÀÄ°è DgÉÆÃ¦vÀ £ËPÀgÀ ²æÃ J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ EªÀgÀ£ÀÄß ºÀÄzÉÝ¬ÄAzÀ vÉUÉzÀÄ ºÁPÀÄªÀ/ªÀeÁ ªÀiÁqÀÄªÀ C¢üPÁgÀªÀÅ¼Àî ¸ÀPÀëªÀÄ ¥Áæ¢üPÁj PÉ.PÉ.«Ä±Àæ, ¸ÀPÁðgÀzÀ ªÀÄÄRå PÁAiÀÄðzÀ²ð, PÀ£ÁðlPÀ ¸ÀPÁðgÀ

¶112

17

¶113

DzÀ £Á£ÀÄ ²æÃ J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ, EªÀgÀ£ÀÄß ®AZÀ ¤gÉÆzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7 ªÀÄvÀÄÛ 13(1)(r) eÉÆvÉAiÀÄ°è NzÀ¯ÁzÀ PÀ®A 13(2)gÀ ¥ÀæPÁgÀ ²PÁëºÀð C¥ÀgÁzsÀPÁÌV C©üAiÉÆÃUÀUÉÆ½¸À®Ä F ªÀÄÆ®PÀ ªÀÄAdÆgÁwAiÀÄ£ÀÄß ¤ÃrzÉÝÃ£É.”

¶114

On careful perusal of the contents of Ex.P.1 and Ex.D.1, which is a proforma sanction order, this Court does not accept the arguments that there was mere copying of Ex.D.1 in Ex.P.1 and Ex.P.1 is prepared mechanically.

¶115

Admittedly, proforma is usually sent along with the requisition of grant of sanction order only with an intention to have a sanction order in a proper format. Same would not ipso facto suggest that there is no independent appreciation of material on record. Accordingly, there is no substance in the argument put forth on behalf of the appellant that sanction order is invalid. Hence, point No.1 is answered in negative .

¶116

REG.POINT Nos.2 AND 3:

¶117

In the case on hand, complainant is examined as PW.5. He supported the case of the prosecution and

¶118

18

¶119

deposed that he was working as the President of Dakshina Kannada District, Ex. Serviceman Association, Mangalore and he was acquainted with the accused; in respect of the application seeking grant of five cents of land to the said association, the file had reached the office of the appellant; appellant said to have demanded sum of Rs.500/- as bribe for himself and Rs.35,000/- in all for finalization of grant of five cents of land. He also deposed that appellant said to have demanded sum of Rs.20,000/as first installment and balance sum of Rs.15,000/- to be paid after the work is completed.

¶120

It is his further deposition that on 10.03.2004, he met the appellant. Thereafter, he met Deputy Superintendent of Police, Lokayukta and Police Inspector and thereafter, lodged written complaint vide Ex.P.18.

¶121

In his further deposition, he deposed about the formation of raid team by securing independent panch witnesses and demonstrating the chemical reaction of phenolphthalein powder with sodium carbonate solution

¶122

19

¶123

and directing him to hand over sum of Rs.20,000/- which were 500 currency notes of forty in number. Serial numbers of the currency notes were noted separately and phenolphthalein powder was smeared on the currency notes and directed him to hand over the tainted currency only on demand made by the appellant and one of the shadow witness was directed to accompany the complainant and observe the proceedings especially with regard to demand and acceptance of bribe money.

¶124

He also deposed about drawing up of entrustment mahazar and visiting the office of the appellant. He further deposed that entire raid team went near the office of the appellant and himself and Sri.M.V.Umesh went into the room of the appellant where he was sitting on the chair. Sri.M.V.Umesh was introduced to the appellant. Appellant said to have told him and Sri.M.V.Umesh to wait outside. Thereafter, within five minutes, appellant came out from his room and told that all of them should go for tea. Then all of them proceeded to the tea stall near K.R.Circle and walked towards

¶125

20

¶126

K.R.Circle and mini park in front of Vishveshwaraiah statue. There they sat on a cement bench and there appellant demanded to hand over the bribe money.

¶127

It is specific say of P.W.5 that appellant took

¶128

tainted currency in his right hand and counted the same with both the hands and kept the money in the right side of the pant pocket. P.W.5 further deposed that thereafter he gave a predesignated signal to the raid party. Immediately, raid party appeared and hands of the appellant were washed in sodium carbonate solution separately. Both the solutions turned into pink colour which was collected in the bottle and sealed. Thereafter, appellant was directed to produce the tainted money. Appellant, took out the tainted currency from his right side pant pocket and all of them proceeded to the office of the appellant where an alternate pant was secured to the appellant and pant worn by the appellant was also seized and inside of the right side pant pocket was also washed in sodium carbonate solution which turned into pink colour. Same was also collected in the bottle, sealed and seized by

¶129

21

¶130

the police. File containing the application given by him on behalf of the association was also summoned and said file was also seized. Cassette was taken out from the tape recorder and same was also seized. Photographs of the seizure mahazar were taken.

¶131

In his cross-examination, he has answered

¶132

that he is M.A., L.L.B. graduate and he served in Indian Air Force as Warrant Officer for about 19 years and thereafter, practiced as an Advocate for about seven years.

¶133

He has further answered that as on the date of cross-examination, he was working as Tahsildar for past three years. He admits that he had contested for Mangalore Assembly constituency as candidate from Kannada Nadu party. He further admits that office of the appellant is located in 5th or 6th floor of M.S. Building. He further answered that on 10.03.2004, when he met the appellant, he had told him that he should have come one week early so that the application could have been favorably disposed of as there is an election code of

¶134

22

¶135

conduct, his work will be deferred till 15th May. He denied the suggestion that when he had met the appellant on 13.02.2004, he had told to get the work done early.

¶136

He denied the suggestion that accused never demanded sum of Rs.500/- on 13.02.2004 nor accused demanded sum of Rs.35,000/- which were to be paid in two installments. He had answered that after the demand made by the appellant, he had discussed the issue with the members of association and it was resolved that such person must be trapped by Lokayukta. He has answered that he did not complain to the Revenue Secretary about the demand of the bribe by the appellant. He has answered that land was granted to his association immediately after the trap.

¶137

Shadow witness is examined as PW.2. He deposed in line with the examination-in-chief of the complainant about the entrustment mahazar and accompanying the complainant to the office of the appellant at about 2:45 p.m. on the day of trap, wherein

¶138

23

¶139

complainant has enquired the pending work with the appellant.

¶140

He further deposed that appellant told him if he had come little earlier, election code of conduct would not be enforced and work would have been done. Thereafter, appellant told him and the complainant to wait outside for ten minutes. He further deposed that later appellant came out from his chamber and all of them had a tea. He also deposed about the proceeding to the park located near K.R.Circle in front of S.J.Polytechnic College and sitting on the bench in the park.

¶141

He further deposed about the enquiry made by the complainant with regard to the pending work, wherein the appellant has replied that work cannot be done now in view of the election code of conduct and it cannot be done till 15th May. It is also in his oral testimony that later appellant enquired PW.5 about the bribe money. He further deposed that at that juncture, PW.5 handed over

¶142

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¶143

the tainted currency to the accused which he received in the right hand and kept in the pant pocket.

¶144

He also deposed that complainant thereafter, gave a pre-designated signal of keeping the pen behind his ear and at that juncture all the members of the raid team surrounded the accused and his hands were washed in the colourless solution which turned into pink colour and same was stored in the bottle, sealed and seized. It is also his deposition that the tainted currency was recovered from the pant pocket of the appellant and numbers were tallied in comparison with the entrustment mahazar and thereafter, appellant was taken to his office and file containing the pending work of PW.5 was seized and accused was arrested and an alternate pant was secured to the appellant and paint worn by the appellant was also seized. He further deposed about drafting of mahazar in the office of the appellant.

¶145

25

¶146

In his detailed cross-examination, no useful material is elicited so as to disbelieve his version except stating that he is deposing falsely to help the prosecution which has been denied by him.

¶147

Deputy Superintendent of Police, Karnataka Lokayukta is examined as PW.3 who deposed about lodging of the complaint by PW.5 and directed the Inspector - Sri.N.M.Darmappa to register the case based on the complaint and proceed in accordance with law. In his cross-examination, he admits that he has not made any endorsement on P.W.18 (complaint)

¶148

Under Secretary to Revenue Department by name Smt.R.Nirmala was examined as PW.4. She has handed over the document sought for by the Lokayukta Police. She is not cross-examined.

¶149

Investigation Officer is examined as PW.6 who received the complaint and registered the case in Crime No.07/2004 as per the directions of PW.3 and formed raid team, secured punch witnesses, explained them the

¶150

26

¶151

contents of the complaint, details of intended trap and preparing the FIR vide Ex.P.20.

¶152

He also deposed that Sri.M.V.Umesh has been secured from Transport Department and Sri.M.Vijaykumar from Agricultural Department to act as panchas. He further deposed about the entrustment mahazar details and instructing PW.5 and PW.2 to go to the office of the appellant and only on demand, the tainted currency to be handed over to the appellant. He also deposed about the appellant, P.W.5 and PW.2 coming out of the office and they have followed them near the park at K.R.Circle and they were waiting for the pre-designated signal. After P.W.5 gave pre-designated signal in the park, immediately co-pancha and other sub-staffs proceeded to the spot and thereafter, raided the appellant, got washed his hands in sodium carbonate solution which turned into pink colour and seizure of the pink colour solution in bottles and seizure of tainted currency which were in 500 denominations and bringing the appellant back to his chambers, collecting the documents, getting removed the

¶153

27

¶154

pant worn by him by securing alternate pant and seizure of the pant, washing of the pant pocket, solution being seized, cassette in the tape recorder was also seized and drafting of trap mahazar.

¶155

He further deposed about the arrest of the appellant and producing him before the learned Special Judge, completing further investigation by examining witnesses, collection of documents and filing of charge sheet.

¶156

In his cross-examination, he denied the suggestion that false case has been foisted against the appellant. He admits that K.R.Circle in Bengaluru City is a heavy traffic junction area. However, he denied the suggestion that even if two persons are standing at the distance of two feet each other, he cannot hear the conversation because of the sound of vehicular movement. He also admitted that place where the accused was surrounded by him and other members of the raid team in the pathway and there is no separate mahazar conducted

¶157

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¶158

as to the place where accused has been apprehended. He further admits that complainant is an ex-servicemen and he was practicing Advocate in Mangalore. Except those admissions all other suggestions put to him that trap is a motivated trap and appellant was innocent and he has been falsely implicated in the case on hand is denied by him.

¶159

The above evidence on record is sought to be reappreciated by Sri.C.M.Kempegowda, learned counsel for the appellant by holding that the sanction order is invalid and reappreciating the fact that money was thrusted into the pant pocket and work would not be completed on account of code of conduct of the assembly which was in force on account of assembly elections.

¶160

Per contra, as referred to supra, Sri.Venkatesh S. Arabatti, learned counsel for the respondent opposed each of those grounds.

¶161

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¶162

In the light of rival the contentions, when the material evidence on record is reappreciated, it is crystal clear and duly established by the prosecution that appellant was a public servant and application form filed by the complainant for its association was pending consideration with the appellant even on the date of trap. Material on record would go to show that application was pending for more than two years. It is in that regard, appellant was consulted by P.W.5. On the first day, when the appellant met P.W.5, there was a demand of sum of Rs.500/- which P.W.5 parted away and demand of Rs.30,000/- was discussed with the members of the association and unanimously decision was taken to trap the appellant.

¶163

Admittedly, after the trap, when there was no proper explanation offered by the appellant, the investigation officer has investigated the matter thoroughly and then placed entire materials collected by him during the course of investigation before sanction order was obtained from P.W.1.

¶164

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¶165

In the absence of any previous enmity or animosity, why would P.W.1 accord sanction to prosecute the appellant is a question that is not satisfactorily answered on behalf of the appellant. Further, admittedly, demanding the bribe money for showing favour by misusing the official position would not come under the discharging of the official function in the normal course.

¶166

Likewise, the sanction to prosecute is a prudent cautionary method to save a honest Government official and is not for a person who demands illegal gratification for misuse of his official position.

¶167

There is no material on record which would indicate that appellant could be protected by resorting to the insulation mechanism provided under the Prevention of Corruption Act, 1988 as the actual trap has taken place outside his office that too in the public place. What was the necessity for the appellant to move out of his work place along with P.W.5 and P.W.2 that too in office hours is not explained by the appellant. Therefore, the argument

¶168

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¶169

put forth on behalf of the appellant that sanction order is invalid cannot be countenanced in law.

¶170

Insofar as the second limb of the argument on behalf of the appellant that money was thrusted into the pant pocket of the appellant is concerned, as could be seen from the material evidence on record, appellant when consulted by P.W.5 and P.W.2 in his office. They were told to wait outside for ten minutes. Later, appellant came out of his work place in the guise of having a tea. All the three persons, then proceeded to tea shop and had tea. Subsequently, it is appellant who took P.W.2 and 5 to a park near K.R.Circle. Then the appellant has demanded bribe money. No doubt, P.W.2 has answered that he could not recollect the entire conversation that took place between P.W.5 and appellant but he said that he remembers partly the conversation.

¶171

It is settled principles of law and requires no emphasis that a witness is required to depose before the Court what transpired on a particular day and if the gist is

¶172

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¶173

spoken to by the witness that has to be appreciated. Witness is not a tape recorder to recapitulate the entire conversation in verbatim. Further, witness who has been cross-examined by the defence is not undergoing a memory test.

¶174

Therefore, when the material evidence on

¶175

record is appreciated in a cumulative manner keeping the above principles in the background, demand made by the appellant with P.W.5 have been observed and heard by P.W.2 has been established sufficiently by the prosecution.

¶176

In the working hours, why would the appellant leave his seat and come out of the office and move to K.R.Circle which is roughly about 300 to 400 feet away from his working place is a question that needs to be explained by the appellant. No such explanation is forthcoming on record. Inference that could be drawn from the above circumstance is that admittedly, the appellant was knowing the consequence of accepting the illegal gratification in the office. Therefore, he has

¶177

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¶178

proceeded away from his official seat in the guise of taking tea and then accepted the tainted currency in a place which is far away from his office. After the pre-designated signal is received by the raid team, immediately the raid team surrounded the appellant in the pathway near the park which is situated in K.R.Circle and hand wash of the appellant was made in the said spot itself.

¶179

After the hand wash, head of the raid team directed the appellant to take out the tainted currency which was kept by him in his pant pocket. Later, he was taken to his office and pant worn by him was got removed and seized by the head of the raid party and secured alternate pant for the appellant. Cloth inside of the right side pant pocket was also dipped in the sodium carbonate solution which turned into pink colour which was also seized in the bottle and procedure that took place near the K.R.Circle, bringing back the appellant to the office, seizing the pant worn by the appellant and washing the pant pocket are all recorded in the mahazar. Mahazar witnesses have supported these aspects of the matter in

¶180

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¶181

toto . Admittedly, mahazar witnesses are responsible officials who did not nurture any previous enmity or animosity against the appellant nor they possessed extra affinity towards P.W.5.

¶182

Taking note of these aspects of the matter, the theory put forward on behalf of the appellant that money was thrusted into his pant pocket cannot be countenanced in law as a the colour test stood positive even before the money was actually asked to be taken out from the pant pocket of the appellant. If the appellant has not at all handled the tainted currency, then the colour test of hand wash should not have turned into pink colour. Therefore, the second point that the money was thrusted into the pant pocket and there was no demand and acceptance by the appellant, has no merit and needs to be rejected.

¶183

Now coming to the question of pending work of the complainant so as to find out whether there was a demand made by the appellant for completing the work by misusing his official position.

¶184

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¶185

P.W.5 and 2 categorically deposed before the Court that appellant had told them if the complainant had come a week earlier, paper could have been processed and necessary orders would have been given. He told them that since the election code of conduct is in force, nothing can be done till 15th May. However, the explanation offered by the appellant since there was no possibility of processing the application in view of the code of conduct cannot also be countenanced in law inasmuch as the said application was pending with the appellant for a period of more than two years.

¶186

Why anyone will keep the file not processing for a period of two years is a question that remains again unanswered. Therefore, the case of the prosecution that he had kept the file without processing, expecting the illegal gratification assumes sufficient significance.

¶187

All these factors when viewed cumulatively, this Court does not find any legal infirmity or perversity in the finding of guilt recorded by the learned Special Judge.

¶188

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¶189

Reappreciation of the material on record did not improve the case of the appellant to any extent.

¶190

In view of the foregoing discussion, this Court is of the considered opinion that the finding recorded by the learned Special Judge to maintain the conviction of the appellant for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 needs no interference in the absence of any legal infirmity or perversity established by the appellant. Accordingly, point Nos.2 and 3 is answered in affirmative and negative respectively.

¶191

REG. POINT No.4:

¶192

In the case on hand, as could be seen from the material on record, learned Special Judge has imposed punishment of six months for the offence punishable under Section 7 with fine of Rs.5,000/- with default sentence and rigorous imprisonment for a period of 1.5 years for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

¶193

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¶194

No mitigating circumstances are placed on record on behalf of the appellant to reduce the sentence. Accordingly, sentence needs no modification in the case on hand. Accordingly, point No.4 is answered in negative .

¶195

REG.POINT No.5:

¶196