State of Karnataka Vs v.Chandrashekar

V. CHANDRASHEKAR S/O VENKATARAMANA, AGED ABOUT 39 YEARS, SECRETARY, J. THIMMASANDRA GRAMA PANCHAYATH, J. THIMMASANDRA VILLAGE, SRINIVASAPURA TALUK, KOLAR DISTRICT-563 135, KARNATAKA.

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…RESPONDENT (BY SRI. VIVEK N., ADVOCATE FOR SRI. DEEPAK J., ADVOCATE) THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C., PRAYING TO: (A) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 19.08.2014 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE AT KOLAR IN PCACC NO.08/2011 THEREBY ACQUITTING THE RESPONDENT/RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTION 7, 13(1) (D) R/W

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SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT; (B) SET-ASIDE THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL DATED 19.08.2014 PASSED BY THE LEARNED DISTRICT AND SPECIAL JUDGE AT KOLAR IN SPECIAL CASE NO.08/2011, BY ALLOWING THIS CRIMINAL APPEAL; AND (C) CONVICT AND SENTENCE THE ACCUSED-RESPONDENT FOR THE OFFENCES PUNISAHBLE U/SEC 7, 13(1)(d) R/W SEC 13(2) P.C. ACT, WITH WHICH HE HAS BEEN CHARGED IN ACCORDANCE WITH LAW.

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

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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The State has preferred this appeal, being aggrieved by the Judgment and Order dated 19.08.2014 passed by the Court of Principal District and Sessions Judge at Kolar in PCACC No.8/2011, wherein the learned Sessions Judge has acquitted the accused/respondent of the charges levelled against him under Section 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘PC Act’).

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Heard the learned Spl.PP for appellant and the learned counsel appearing for respondent and perused the evidence and material on the record.

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It is the case of prosecution that the accused working as Secretary of J. Thimmasandra Grama Panchayath demanded a sum of Rs.5,000/- from the complainant (PW1) by way of illegal gratification other than legal remuneration, for dispersing the amount of wages payable to the complainant and other workers, who worked under NREG Scheme. Further, on 15.02.2010 at about 03.15 p.m., in his private office at Srinivasapur, he demanded and accepted Rs.5,000/- from PW1 in order to obtain pecuniary advantage for himself other than legal remuneration as a motive or reward for disbursing the amount of wages, by way of cheque and thereby abused his official capacity as a public servant and committed criminal misconduct under Section 13(1)(d) of PC Act punishable under Section 13(2) of the said Act.

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The trial Court, appreciating the oral and documentary evidence on record has acquitted the accused holding that the prosecution has failed to establish the guilt of the accused beyond doubt. To arrive

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at the said finding and conclusion, the trial Court has taken into consideration the discrepancies and contradictions in the evidence of PW1 and PW4, and the different versions they gave in their chief examination and cross examination. The trial Court has held that the evidence of PW1 and PW4, the material witnesses in this case is doubtful and on the basis of their evidence, no inference can be drawn that the accused committed such an offence as alleged against him.

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Ex.P1 is the complaint lodged by PW1, as per which, he and other workers had completed the work under the NREG scheme, but the accused working as a Secretary of J. Thimmasandra Grama Panchayat had not paid the amount for the work done. When the complainant met him, he demanded that 10% of the total amount has to be given to him, to keep the cheque ready. Hence, the complainant informed the matter to the Police Inspector, Lokayukta Office, Kolar, who gave him the voice recorder on 10.02.2010. The accused made a call from his mobile

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phone to the mobile phone of the complainant informing him that the cheque amount of Rs.76,568/- is ready and it will be sent through one Munivenkatappa, but the complainant should pay a sum of Rs.5,000/-. It is stated that the said conversation was recorded in the mobile phone and transferred to the tape recorder.

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Based on the complaint at Ex.P1, PW13, the Police Inspector, Lokayukta Police registered the case and secured two officials to act as panchas and prepared the entrustment mahazar on the same day. PW13 along with his staff and panchas and the complainant went to the private office of the accused in Srinivasapura. According to prosecution, the complainant and a panch witness by name Venkatesh (PW4) went inside the office of the accused. The accused demanded and accepted the bribe amount of Rs.5,000/- from the complainant. He then came out of the office and gave pre-arranged signal to the police, who went and apprehended the accused and recovered the tainted currency from a rexin bag. Trap

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mahazar was prepared and the explanation of the accused was taken.

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It is the specific case of the prosecution that the

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accused was working as a Secretary of J.Thimmasandra Grama Panchayath. The complainant and other coolie workers who had undertaken the work under NREG scheme in the said Grama Panchayath requested the accused to release the amount for the work done by them, but the accused demanded a bribe of Rs.5,000/- as illegal gratification for issuing the cheque. PW13, Investigation Officer along with his staff and two panchas including the shadow witness examined as PW4 went to the private office of the accused in Srinivaspura, situated in the first floor, wherein the accused demanded the bribe of Rs.5,000/- and received the said amount from the complainant with his right hand and kept in a bag. Thereafter, the complainant came out of the office and gave signal to the police, who entered the Office and

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apprehended the accused and recovered the amount from the bag.

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Admittedly, the accused is a public servant

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working as a secretary in the Grama Panchayath. Ex.P62 is the sanction order obtained to prosecute the accused. The said Ex.P62-sanction order was issued by PW9, Chief Executive Officer,Zilla Panchayat. In his deposition, he has stated that he has gone through all the investigation papers and having satisfied that it is a fit case to accord sanction to prosecute the accused, he issued the sanction order. The competency of PW9 to issue the sanction order though disputed, PW9 has stated that he was the competent authority to accord sanction to prosecute the accused. No contra evidence is placed to show that PW9 was not the competent authority to accord sanction order at Exhibit P62.

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The prosecution has examined PWs.5, 6, 7, 11 and 12, the co-workers said to have worked along with the complainant. The said witnesses have stated that they

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have worked but the remuneration for the work executed

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by them was not paid. It is pertinent to mention that PW10 working as Executive Officer, Taluk Panchayath, Srinivasapura, in his cross- examination has stated that the person seeking employment under the scheme has to file an application in writing and on receiving such application, a job card will be issued. The Junior Engineer would take attendance and submit the report regarding the work carried out by such workers and submit the same

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to the Gram Panchayath. At the same time, a common bank advice or post office advice used to be sent for crediting the amount to the account of the persons mentioned in such advice. Each and every worker is required to have a savings account either in the bank or in the post office. The Secretary and President of Gram Panchayat were authorized to sign the cheques. He has further stated that in Ex.P4 i.e., copy of the cheque, the accused has affixed his signature and the President of the Gram Panchayat was required to affix his signature.

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Ex.P6 is the muster roll which was confronted to PW1, wherein it contains the names of the workers who worked under the scheme. Ex.P6 contains the signature of the complainant as per Ex.D1. PW1 has stated that he has affixed his signature as a witness regarding the work carried out by the persons whose names have been mentioned in Exs.P6 to P8.

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The learned Sessions Judge having perused the documents at Exs.P3 to P46, has observed that the name of either the complainant or his family members, namely his wife, mother, do not find a place in those documents to conclude that they have worked under the said scheme for wages and the amount was due to them. Further, PW1 has admitted that he has affixed his signature as a witness regarding the work carried out by other persons mentioned in Ex.P6 under the scheme. Hence, the learned Sessions Judge has come to the conclusion that though the complainant has claimed that he and his family members have worked under the scheme as coolies and

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executed the work, no documentary evidence to support the said contention were placed on record. In Ex.P3 to P46, the names of the complainant and their family members do not find a place. In the cross-examination, PW1 has stated that about 40 people have worked under the scheme and a sum of Rs.76,568/- was payable to them, but in the cross examination he has admitted that he and his family members have not filed any application seeking employment under the scheme. According to him, they were orally called for work. Though he has stated that he was issued with a job card and the said job card was available with him, he has not produced any job card to establish that he was working under the scheme and wages were payable to him under the Scheme.

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One of the workers examined as PW7 has stated that he has received notice from the panchayat to work and he was given with the work order book. However, he has stated that the said book was with the complainant. He has stated that the complainant had

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employed him and other workers but he was not given the work by the panchayat under the said scheme. Having regard to the non-production of the document to establish that the complainant had worked under the scheme and the wages were due, the learned Sessions Judge has held that it was the complainant who had engaged the workers to work by engaging them and therefore, the other workers were engaged by the Panchayat under the scheme and the amount was payable towards wages cannot be believed.

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Insofar as the demand and acceptance of bribe is concerned, it is the case of prosecution that the complainant (PW1) and the shadow witness (PW4) went inside the office of the accused and when the accused demanded the bribe, the complainant gave the tainted currency of Rs.5,000/- which was received by the accused with his right hand and kept in the rexin bag. Thereafter, the complainant came outside the office and gave signal to the Police. After the accused was apprehended, his hands

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were washed and his right hand solution turned pink. Thereafter, the I.O. asked the shadow witness to remove the amount from the bag and the said currency notes tallied with the currency notes mentioned in the pre-trap mahazar.

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Though, initially PWs.1 and 4, in their chief examination have deposed about accused receiving the amount with his right hand and keeping the said amount in the bag, PW4 has stated that it was him who gave signal to the raiding team, contrary to the evidence of PW1. According to PW4 he gave signal to Lokayukta police by running his right hand over his head and PW1 remained in the room of the accused. He was told by the Inspector of Police to take out the amount from the bag of the accused, accordingly he took the amount from the bag and gave to the accused to count and the accused counted the currency notes. Thereafter, hand of the accused was washed in Sodium Carbonate solution and the said solution turned pink.

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From the evidence of PW4 in the chief examination, it is clear that after the amount was removed by him from the bag, the same was given to the accused for counting. Obviously, if the notes were sprinkled with Phenolphthalein powder, hand wash of the accused would turn pink. PW4 was treated hostile by the prosecution.

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In the cross-examination conducted by the public prosecutor, PW4 has denied having stated that it was PW1 who gave signal to the Lokayukta Police after the accused received the amount but stated that MO1-currency notes were not given to the accused for counting after the same was taken out from the bag.

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In light of the above evidence of PW4, it is necessary to appreciate the evidence of the complainant. Though the complainant-PW1 has stated that the accused received the amount and kept in the bag, in the cross-examination conducted by the defence, he has given a completely different version. He has stated that when he went to the Gram Panchayath office, accused was not

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available and therefore, he came to the room of accused at Srinivasapur. CW2 (PW4)-Venkatesh was standing near the door of the room of the accused in the passage. When he went to the room of the accused, he was in the toilet, which was attached to the room. At that time the bill collector was in the room. He did not give the amount to Bill Collector-Narayanaswamy asking him to give the same to the President (CW5)-Rajamma. Since she had not signed the cheque, he thought that she did not sign the cheque expecting money from him. The accused told him from the toilet itself to keep the amount on the table and therefore, he kept the amount on the table and went to inform the Lokayukta Police.

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PW1 in the cross-examination has categorically stated that he kept the money on the table and he did not know who kept the amount in the bag of the accused. He has stated that when he returned to the room of the accused along with the police, the accused was coming out of the toilet and on seeing them, once again he went

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inside the toilet and returned after ten minutes. At that time, Narayanaswamy-Bill Collector was present in the room. Then, PW1 told the police that he had kept the amount on the table and since accused was in toilet, the said Bill Collector has kept the said amount in the bag of the accused. He has not seen if the amount was taken out from the bag of the accused as pointed out by Narayanaswamy. After ten minutes, the Lokayukta police called him inside and obtained his signatures.

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The above evidence of PW1 completely demolishes the case of the prosecution that the accused has demanded and received the amount from him and kept the money in the bag. If the evidence of PW4 given in his chief examination is appreciated, then it is obvious that after he removed the amount from the bag, at the instructions of the Lokayukta police he gave the tainted currency to the accused for counting and thereafter the right hand of the accused was dipped in Sodium Carbonate solution. Hence, the learned Sessions Judge has rightly

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come to the conclusion that in view of the different version altogether, the evidence of the complainant and PW4 the shadow witness is doubtful.

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The prosecution has also relied on the conversation between the accused and the complainant, said to have been recorded in the mobile phone of the complainant and then transferred to the Tape recorder. MO.8 is the cassette. The transcription of the conversation are extracted in Ex.P2-entrustment mahazar. Admittedly, there is no certificate obtained as required under Section 65B of the Evidence Act. The prosecution has examined a co-employee of the Gram Panchayat as PW2. Admittedly, the conversions are in Telugu language whereas PW2 in his cross-examination has stated that the said conversation was in kannada language. The evidence of PW2 is therefore, does not inspire the confidence of the Court.

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