Parameshwara Basri Vs the State by SP

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 30.07.2012 PASSED BY THE SPECIAL/SESSIONS JUDGE, UDUPI IN SPL. CASE NO.4/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7 AND 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for the appellant and learned

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Special counsel for respondent-Lokayuktha.

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The factual matrix of the case of the prosecution before the Trial Court is that the accused being a public servant employed as Deputy Tahsildar, Kundapura Taluk Office, Udupi District on 03.12.2007 accepted Rs.500/- from the complainant B. Jayasheela Shetty, as gratification other than legal remuneration, as a motive or reward for doing favour to the complainant in getting records for clarifying about the declarations in Form Nos.7 and 7A in relation to sale of the properties bearing Sy.No.85/4-027 acre, Sy.No.85/5-0.28 acre, Sy.No.87/2-0.87 acre, Sy.No.87/6B2-0.49 acre and Sy.No.85/3A-2.35 acre of Belur Village, Kundapura Taluk and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and he also took pecuniary advantage to the extent of Rs.500/- from the complainant as gratification for the said purpose and thereby committed the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

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The prosecution, in order to prove the charges levelled against the accused examined the witnesses as P.Ws.1 to 9 and got marked the documents as Exs.P1 to P26(a). The accused did not lead any evidence before the Court and marked M.Os.1 to 14.

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The Trial Court having considered the evidence of prosecution and also the fact that complainant turned hostile relying upon the evidence of P.W.6, who is shadow witness and also P.W.7, the Investigating Officer and also the trap mahazar, comes to the conclusion that the prosecution proved the case against the accused and the accused committed the offence under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. Being aggrieved by the said conviction and imposing of sentence for a period of 1½ year and imposition of fine of Rs.5,000/-, present appeal is filed before this Court.

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The main contention of learned counsel for the appellant before this Court is that no work was pending with the accused and Investigating Officer admitted in the crossexamination that no work was pending and file was cleared by

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Tahsildar on 27.11.2007. Learned counsel would contend that complainant had turned hostile and there was delay in filing the complaint and contend that in terms of complaint Ex.P3 marked before the Trial Court, it is contended that he had visited the office of Tahsildar on 12.10.2007 and Tahsildar asked him to come after one week and when he went after one week and met the accused, he told that file has been sent to office of Tahsildar and asked him to come after one week and said that while coming, he should bring amount of Rs.500/- and accordingly, he went to office on 29.11.2007 and on enquiry, he told that he has not yet received the file from the office of Tahsildar and also he made remarks that he is coming and going and not having respect and only if he pays money, work will be done. Hence, the complainant has told that he has not brought the money and he will come back after some time and then he went and gave the complaint on 30.11.2007 and police gave the tape recorder to record the conversation and accordingly, he went to office of accused and he recorded the same and in the said tape recorder, a conversation was made with regard to payment of money and he came to know that there was a meeting on 01.12.2007 and hence, he went and

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met the accused on 03.12.2007 and formalities was done in the office of Lokayuktha i.e., entrustment mahazar and thereafter raid was conducted.

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Learned counsel would vehemently contend that there was a delay in lodging the complaint and according to the complainant, he went and met the accused on 12.10.2007 and according to him, after one week, when he went to office of Deputy Tahsildar, the demand was made, but he did not take the money on 29.11.2007, but only after lodging the complaint only, formality was done and there was inordinate delay in lodging the complaint. Learned counsel would vehemently contend that P.W.2 is the trap mahazar witness and his evidence is also very clear that file was with Nagarathna and not with the accused. P.W.2 says that signal was given by one Ramesh, but the case of the prosecution is that signal was given by complainant after handing over of money. Learned counsel also brought to notice of this Court Exs.P23 and P24, wherein also no conversation with regard to demand and learned counsel would contend that in the conversation also there was no demand and no work was pending with the accused and evidence of shadow witness, who has been

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examined as P.W.6 also not corroborates with the case of the prosecution and he only says that accused demanded money and there was no evidence of what conversation has taken place between the complainant and accused. Learned counsel would contend that when the complainant has turned hostile and evidence of shadow witness not corroborate the case of the prosecution, there cannot be any conviction and it requires interference of this Court.

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Per contra, learned Special counsel for the respondent-Lokayuktha would contend that in the complaint at Ex.P3 categorically made the statement with regard to demand made by the accused for amount of Rs.500/-. P.W.6, shadow witness categorically deposes before the Court that demand was made by the accused, though no details stated in the evidence, but with regard to the demand is concerned, he has stated before the Court. Apart from that the evidence of shadow witness is very clear that after the payment of money, subjected the hand wash of the accused and the same turned to pink colour and his evidence is very clear regarding acceptance of money. The Trial Court in detail discussed the evidence of witnesses and even though no work was pending

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with the accused, but the fact that he had approached the complainant on the earlier dates and demand made by the accused is very clear in the complaint-Ex.P3. When such material is found before the Trial Court, Trial Court rightly appreciated the evidence of P.W.2 and P.W.6 and so also Investigating Officer P.W.7 and no grounds are made out to interfere with the findings of the Trial Court.

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Having heard learned counsel for the appellant and

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learned Special counsel for the respondent-Lokayuktha and also considering the material on record, the points that would arise for consideration of this Court are:

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(1) Whether the Trial Court has committed an error in convicting the accused for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and whether it requires interference of this Court by exercising appellate jurisdiction?

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(2) What order?

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Point No.(1)

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Having heard learned counsel for the appellant and learned Special counsel for respondent-Lokayuktha, it is the specific accusation against the accused that with regard to the clarification of declaration is concerned in respect of Form Nos.7 and 7A, the complainant gave the application in the Taluka Office. In the complaint also, an allegation is made that, he demanded an amount of Rs.500/- and consistently visited the Taluka Office and ultimately, he was not interested to pay the bribe amount and hence, lodged the complaint and he went and recorded the conversation of demand and gave the tape recorder to the Investigating Officer. Having considered the document of Exs.P23 and P24 regarding tape recorder conversation, there is nothing with regard to the demand of money and the tape recorder conversation does not disclose anything with regard to the demand and acceptance. Hence, Exs.P23 and P.24 as rightly pointed out by learned counsel for the accused, nothing on record regarding demand is concerned.

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It is important to note that complainant, who gave the complaint has been examined as P.W.1 and he has turned hostile and he has not supported the case of the prosecution, but he only says he went and gave the application on

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12.10.2007, since he was in need of Clearance Certificate from Taluka Office. It is also his evidence that accused was Deputy Tahsildar at Kundapura and Exs.P1 and P2 are marked for having given application and also endorsement. Ex.P3 is the complaint and he reiterates the complaint averment regarding asking him to come later and when he met the accused, he told him that he has already put up the file and file is pending with the Tahsildar and he says that once again, when he went and enquired with the Deputy Tahsildar, he said that file has been sent to Taluka Office and same has not yet come and someone told him to give complaint in the Lokayuktha. Hence, he went to Lokayuktha office on 29.11.2007 to give complaint and again he went to office of Lokayuktha on 30.11.2007 and he reiterates that tape recorder was given to him and he met the accused and he had returned the tape recorder and when he enquired, he told him that not to worry and he behaved like a respected person and says that Lokayuktha police took his signature in Ex.P3 but, he did not see what has been written in complaint and he turned hostile.

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This witness was cross-examined and nothing is

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elicited in the cross-examination of P.W.1 with regard to the

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contents of Ex.P3. The prosecution mainly relies upon the evidence of P.W.2, who is a panch witness to entrustment mahazar and he came to know that demand was made i.e., Rs.500/-. But, he was not an eye witness to the incident of demand and acceptance. This witness was also subjected to cross-examination and in the chief evidence, he says that after entrustment mahazar, all of them went to office of accused and instruction was given to give signal and later on, after receiving the information for having made the payment, they went to office of the accused and they did formalities and also asked accused to produce the file and he replied that file is with Nagarathna and Nagarathna produced the same which is marked as Ex.P5.

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The material witness is P.W.5 and P.W.4 also says that file was put up and file was placed before the Deputy Tahsildar and also categorically says that file was cleared by Tahsildar on 27.11.2007 and in the evidence of P.W.5, she says that file was given to her and accused did not tell anything to her when he met her and on 28.11.2007, the complainant went and met her and she told that file is cleared and to take the same. In the cross-examination, treating the witness as hostile,

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suggestion was made that she gave the statement in terms of Ex.P19 and the same was denied.

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The other material witness is P.W.6, who is a shadow witness. The shadow witness says that on 03.12.2007, he went to office of the Lokayuktha and Lokayuktha police requested to become a witness to trap and accordingly, he gave consent. The other panch witness is also secured and got introduced the witness and formalities of entrustment mahazar was done in the presence of Lokayuktha, Investigating Officer and the panch noted the same in terms of Ex.P11. It is also his evidence, at around 2.20 p.m., they left the office to go to office of the accused and he accompanied the complainant and accused was sitting in the office and the complainant enquired with the accused and accused demanded money and immediately, the complainant took out the money which was kept in the left pocket and gave it to the accused and accused received the same in his right hand and kept the same in his left pocket and immediately, the complainant gave signal to the Investigating Officer and all of them rushed to the office of the accused and Investigating Officer not asked anything in the office and only done formalities of trap mahazar and seized the

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same and speaks about the conversation and seizure of M.O.11 and drawing of mahazar in terms of Ex.P12. On enquiry, the accused revealed that file was not with him and the same is with Nagarathna. In the cross-examination, question and answer was recorded and in the cross-examination, when question was put regarding whether signal was given and he says that signal was given and when another question was put, whether the same was noticed by the Investigating Officer, he says he is not aware of the same. He says that Ramesh was standing near jeep and he says his left hand did not turn to pink colour, since he did not touch the bribe money in the left hand. He admits that when the accused was asked with regard to demand is concerned, he gave the reply that he has not demanded the money and not accepted any money and he also states that his work was done on 22^nd itself and no work was pending with him and also he gave the reply that file was not with him.

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The other witness is P.W.7, Investigating Officer,

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who conducted entrustment mahazar as well as trap mahazar. He reiterates in chief evidence and in the cross-examination admits that no work was pending with him. He also admits

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that when cognizable offence was brought to his notice, he was aware of the same and he has to conduct the enquiry in writing and also in the cross-examination, he admits that he did not make any entry with regard to entrusting of the tape recorder and also with regard to returning of the same, no acknowledgement was given to the complainant and categorical admission was given that when the raid was conducted, file was already ready and file was cleared on 27.11.2007 itself, but volunteers to state that file was not given to the accused on 30.11.2007 and earlier to that and also admits that complainant gave it in writing and that no work was pending with the accused.

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Having considered both oral and documentary

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evidence placed on record, it is very clear that complainant gave complaint in terms of Ex.P3 and no doubt there is reference in Ex.P3 regarding demand is concerned when he had visited the office, but no specific date was mentioned as to when the demand of Rs.500/- was made and only he says when he later on went to office of Tahsildar, demand was made and subsequently he had visited on 29.11.2007 also. On that day, replied that he has not brought the money and he will

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bring the money. The fact that P.W.1 complainant has turned hostile and even he gone to the extent of saying that he is not aware of contents of Ex.P3 and Lokayuktha police took his signature and he had signed the same. It is also important to note that application was given on 12.10.2007 and later on, complainant says that he visited 2 to 3 times, but record is very clear that as on the date of trap, file was not with the accused and no work was pending with the accused and file was cleared on 27.11.2007 itself and the same has emerged in the evidence of witnesses P.W.2 and other panch witness also say the same. P.W.6 shadow witness also says that work was not pending and the same was cleared and even P.W.7, Investigating Officer also admits that no work was pending with the accused and even accused given the statement that he had cleared the file on 22.11.2007 and he also gave reply immediately after trap and evidence is clear that no work was pending. It has to be noted that when no work was pending with the accused, question of demand does not arise.

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It is also important to note that complainant went to Lokayuktha office only on 30.11.2007 and P.W.5-Nagarathna categorically says that complainant came and met her on

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28.11.2007 and she replied that file was already cleared by Tahsildar and witness P.W.2 also categorically says that file was with Nagarathna i.e., P.W.5 and P.W.2 says signal was given by one Ramesh and not by complainant but, P.W.6 says that signal was given by the complainant. Having taken note of the fact that there was no conversation with regard to demand is concerned in terms of Exs.P23 and P24, though tape recorder conversation was transcribed, nothing is found with regard to the demand or acceptance. It is also important to note that complainant has turned hostile and even shadow witness though says demand was made, nothing is stated before the Court what was the conversation between the complainant and the accused at the time of demand and acceptance of money and mere recovery of money from the accused cannot be a ground to convict the accused for the offence punishable under Section 7 and 13(1)(d) and in order invoke the same, there must be a demand and acceptance and unless demand and acceptance of sine qua non is proved by prosecution, the question of convicting the accused does not arise. The Trial Court failed to take note of the fact that very complainant has turned hostile and he did not support the case of the

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prosecution and even he had gone to the extent of denying the contents of complaint Ex.P3 and even with regard to substantiating the contents of complaint-Ex.P3, there are no material before the Court and shadow witness evidence is also not clear with regard to the conversation between the complainant and accused and very purpose of sending the shadow witness along with the complainant is that he has to state regarding what was the conversation between the complainant and accused with regard to demand and acceptance of money and except omnibus statement that money was demanded, nothing is stated with regard to what was the conversation between the complainant and the accused and only based on the statement of P.W.6 shadow witness that too omnibus statement of demand, there cannot be conviction for the offence punishable under Section 7 and 13(1)(d) and there must be material before the Court, in order to invoke the same.

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It is also settled law that there must be sine qua non of demand and acceptance to convict the accused for the offence under Section 7 and 13(1)(d). Hence, the Trial Court committed an error in coming to the conclusion that

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prosecution has proved the case and also in the charges framed before the Trial Court invoking Section 7, nothing is stated with regard to demand is concerned, in the charge, only it is stated that accepted the amount of Rs.500/- and Section 7 is very clear with regard to demand is concerned and Section 13(1)(d) is with regard to acceptance. When specific charge is not found and while framing the first charge, it is mentioned that on 03.12.2007 accepted Rs.500/- from the complainant and no specific word used in the charge while framing the charge with regard to demand is concerned and very framing of charge itself is also erroneous and regarding acceptance is also concerned, no credible evidence before the Court.

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Apart from that, on the date of trap, no work was pending and file was cleared on 27.11.2007 itself. When even approached the Lokayuktha police after the clearance of the file by the Tahsildar on 27.11.2007, but complaint was given on 03.12.2007 and having perused Ex.P3 complaint, though accused went to Lokayuktha office on 30.11.2007 and investigation process was commenced by handing over tape recorder on 30.11.2007 itself and when the cognizable offence was brought to the notice of the Investigating Officer and

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Investigating Officer in the cross-examination also categorically admitted that, if any cognizable offence is brought to his notice, he should make it in writing and no such complaint was received on 30.11.2007 and only on the date of trap i.e., on 03.12.2007, complaint was given. Having considered all these material on record, prosecution material does not inspire the confidence of this Court to confirm the judgment of the Trial Court and the Trial Court failed to take note of all these anomalies found in the evidence of prosecution. Hence, it requires interference of this Court by exercising the appellate jurisdiction. Accordingly, I answer point No.(1) as ‘affirmative’.

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Point No.(2)

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The criminal appeal is allowed.

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(ii) The impugned judgment of conviction and sentence for the offence under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 is hereby set aside. Consequently, if any fine amount is deposited by the appellant, the same is

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