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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.256/2012
BETWEEN:
P.Prasanna Kumar S/o Late Prabhakaran Nayar Aged about 39 years Assistant Engineer (Civil) Chescom Mysore and Chamarajanagar Division M.P.L Harsha Road Mysore.
Presently working as Assistant Engineer (Civil) Karnataka Power Transmission Corporation Ltd. Office of the Executive Engineer (Ele), Prasarana Bhavan, Santhepet Hassan – 573 201.
S.Nandish
S/o Siddamallaiah Aged about 51 years Assistant Executive Engineer Chesom, Chamarajanagar Division M.P.L. Harsha Road,
2 Mysore.
Presently working as Assistant Executive Engineer (Civil) Karnataka Power Transmission Corporation Ltd., 1st Floor, B.M.Road, Santhepet, Hassan – 573 201.
…APPELLANTS
(By Sri Ravi B.Naik, Senior Counsel a/w Sri Amruthesh C., Adv.)
AND:
State by Lokayuktha Police Mysore.
…RESPONDENT
(By Sri B.S.Prasad, Spl. PP)
This Criminal Appeal is filed under Section 374(2) Cr.P.C., praying to set aside the order dated:15.02.2012 passed by the III Addl. Sessions and Special Judge, Mysore in Spl.C.No.80/2010 – Convicting the appellant/accused for the offences p/u/s 7 and Sec.13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and etc.
This Criminal Appeal coming on for Hearing this day, the Court delivered the following :
JUDGMENT
This appeal is preferred by the appellants-accused No.1 and 2 being aggrieved by the judgment and order of conviction dated 15.2.2012 passed by the III Addl.
3 Sessions Judge and Special Judge, Mysore in Special Case No.80/2010, whereunder the appellants were convicted for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and to pay fine of Rs.1,00,000/- and Rs.50,000/- respectively and in default, to undergo simple imprisonment for six months.
The case of the prosecution in brief as narrated in the Memorandum of appeal is, accused Nos.1 and 2 had been working as Assistant Engineer and Assistant Executive Engineer respectively, during the year 2008 at Chescom, which is a Public Limited Company of which Government of Karnataka holds more than 50% of shares. C.W.1 Satish was a Contractor entrusted with civil works in Chescom in Mysore area. He had taken up certain civil works also in Chamarajanagar being entrusted by Chescom in 2008. After completing the
4 construction work upto RCC roof, he submitted the bill for payment of Rs.10,15,000/- on 30.08.2008. CHESCOM had earlier deducted income tax, sales tax, royalty and other taxes from the bills submitted by Satish (C.W.1). Therefore, C.W.1 had given an application seeking the bill amount and refund of the amounts to be deducted. The total amount to be refunded was Rs.1,15,337/- and therefore, C.W.1 met accused No.1 on 15.09.2008. It is further alleged that accused No.1 is said to have demanded C.W.1 to pay bribe of Rs.50,000/- to do official favour and had even asked C.W.1 to meet accused No.2 also. It is alleged that accused No.2 also demanded the sum of Rs.25,000/- to put his signature on the bills. Since, he did not like to bribe the officials to get his work done, C.W.1 went to Lokayuktha police station at Mysuru and lodged first information on the basis of which an entrustment mahazar was done in the presence of Sathish (C.W.1), Eshwarappa (C.W.2) and Srishkumar (C.W.3) on
5 18.9.2008. On that day itself, Inspector of Police, Lokayuktha, went near the office of accused Nos.1 and 2 along with C.Ws.1 to 3. C.Ws.1 to 3 went inside the office and they came to know that both the accused were not in office and that they would not be available on that day. On the basis of the complaint, Lokayuktha police registered a case in crime No.252/2008 for the offences punishable under Sections 3 and 12 of PC Act.
After completion of investigation, the investigation officer filed charge sheet against both accused persons for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act.
After hearing both sides and after perusing the materials, the learned Special Judge prepared charges and the charges were read over and explained to accused Nos.1 and 2, who denied the charges and claimed to be tried in the matter. Accordingly, the matter was set down for trial.
In support of its case, the prosecution in all examined eight witnesses as P.Ws.1 to 8 and got marked the documents as per Exs.P.1 to P.45 and also produced M.Os.1 to 16A. Thereafterwards, the accused persons were examined under Section 313 of Cr.P.C. and incriminating materials were read over to the accused by way of questionnaire. Whatever the answers given by both accused were recorded in their respective statements. Thereafter, on the side of defence, six witnesses were examined as D.Ws.1 to 6 and the documents at Exs.D.1 to D.8 were got marked.
After considering the materials, both oral and documentary, and also after hearing the arguments on both sides, ultimately, the learned Spl. Judge held both the accused guilty for the said charges and convicted them for the offences punishable under Sections 7, 13(i)(d) read with Section 13(2) of Prevention of Corruption Act. Being aggrieved by the judgment and
7 order of conviction, the appellants-accused Nos.1 and 2 are before this Court on the grounds as mentioned at ground Nos.11 to 25 of the memorandum of appeal.
Heard the arguments of learned Senior Advocate appearing on behalf of the learned counsel for the appellants-accused Nos.1 and 2 on record and also the arguments of learned Spl.P.P. for the respondent-State.
Learned Senior Advocate for the appellants- accused Nos.1 and 2 submitted that looking to the entire prosecution material, the prosecution has not at all proved to the satisfaction of the Court about the demand and acceptance of the bribe amount. Drawing the attention of this Court to the paper book and the deposition of witnesses so also the other documents, the learned Senior Advocate made submission that though the prosecution contended that on 15.9.2008 the alleged offence took place, but the first requirement of the
8 alleged offence that is the demand for bribe amount and its acceptance is not at all established by the prosecution. Regarding the contention of the prosecution about the recovery of tainted currency notes from the possession of the accused persons is concerned, the learned Senior Advocate made submission that it is not the amount which was received by way of bribe. So far as looking to the explanation that accused No.1 has offered is concerned, he has stated that he gave the amount to the complainant for purchase of the site and the complainant returned the said amount to him. So far as accused No.2 is concerned, it is stated that the amount is thrusted forcibly into the pocket of accused No.2. Hence referring to the explanation offered by the accused persons, the learned Senior Advocate submitted that regarding this defence of the accused and looking to the degree of proof is concerned, they need not establish it beyond all reasonable doubt, but it is only the preponderance of probability to be looked into while
9 considering the explanation of the accused. When the entrustment mahazar was conducted on 18.09.2008, the accused were said to have produced the currency notes, which were said to have been smeared with the phenolphthalein powder, before the Lokayuktha Police. The complainant was wearing the shirt having two pockets. The amount to be payable to accused No.1 was kept in the pocket of the shirt and the amount payable to accused No.2 that is Rs.25,000/- was kept in another pocket of the shirt. In this regard, learned Senior Advocate submitted that firstly the shirt of the complainant was not seized to prove that the said shirt was having two pockets. Drawing the attention of this Court to the evidence of complainant (P.W.1) that the shirt which he was wearing on 18.09.2008 was the same shirt which he wore even on 20.09.2008. This itself goes to clearly falsify the case of prosecution. It is also his contention that as on the alleged date, accused Nos.1 and 2 were not at all holding the charge of the said work.
10 Therefore, this itself clearly shows that there is false implication of accused Nos.1 and 2. In this regard, learned Senior Advocate drew the attention of this Court to Exs.P.14 and P.15 which were said to have been seized during the course of the trap mahazar proceedings from the office of the accused. But looking to Exs.P.14 and P.15, he made submission that they were not at all signed and they were the unsigned papers. Therefore, he submitted that so far as the signed documents produced by the accused, they clearly show that as on the alleged date of demand for the bribe amount and payment of the bribe amount, the accused were not at all holding the charge of said work. Looking to the document at Ex.P.11 produced by the prosecution, the learned Senior Advocate submitted that the said document was said to have been executed by the complainant and everything was done on that date itself and it was signed by the concerned persons. This also falsifies the case of prosecution that it was the accused who demanded and
11 received the bribe amount. Taking this Court to the entire deposition of witnesses, the learned Senior Advocate submitted that it clearly shows that the accused have been falsely implicated. It is also his submission that mere recovery of tainted currency notes cannot prove the demand and the acceptance of the bribe amount. Unless and until the requirements of the demand and acceptance of the bribe are established with satisfactory material, no importance can be attached to said recovery of the tainted currency notes. Hence referring to these materials, the learned Senior Advocate submitted that even the shadow witness has not supported the case of the prosecution. It is only the version of the complainant, which is not acceptable and not worth believable and therefore, the charges are not at all established. The learned Special Judge has not considered all these aspects of the matter, he has wrongly read the evidence on the side of the prosecution and ignored the evidence of D.W.1 and wrongly recorded
12 the conviction order against appellants-accused Nos.1 and 2. With regard to the sanction order, the learned Senior Advocate made submission that the person who signed the sanction order is not the competent person to issue the said order. There is no mental application to the materials and mechanically, such an order has been issued. The sanction order is not in compliance of Section 19 of the PC Act. On that ground also, the judgment and order of conviction passed by the Court below is liable to be set aside. In support of his contentions, the learned Senior Advocate has relied upon the following decisions produced along with the memo dated 18.09.2018.
Citations in respect of Appellant No.1: (1) C.Sukumaran –vs- State of Kerala reported in (2015) 11 SCC 314;
(2) State of Punjab –vs- Madan Mohan Lal Verma reported in AIR 2013 SC 3368;
13 (3) C.M.Girish Babu –vs- CBI, Cochin, High Court of Kerala reported in (2009) 3 SCC 779;
(4) Banarsi Dass –vs- State of Haryana reported in (2010) 4 SCC 450;
(5) Sri N.A.Suryanarayana @ Suri –vs- State by Inspector of Police, CBI/SPE/Bangalore reported in ILR 2017 KAR 5591;
(6) State of Karnataka, Through Police Inspector, Bureu of Investigation –vs- Anand Gururao Deshpande reported in ILR 2010 KAR 1983;
(7) Smt.K.Chandrika, I.R.S –vs- State by Central Bureau of Investigation, A.C.B, Bangalore reported in ILR 2013 KAR 4737.
Citations in respect of Appellant No.2: (1) State through Central Bureau of Investigation -vs- Dr.Anup Kumar Srivastava reported in (2017) 15 SCC 560;
(2) Mukhtiar Singh (Since Deceased) through his legal representative –vs- State of Punjab reported in (2017) 8 SCC 136;
(3) V.Sejappa –vs- State by Police Inspector Lokayukta, Chitradurga reported in (2016) 12 SCC 150;
(4) Krishan Chander –vs- State of Delhi reported in (2016) 3 SCC 108.
Per contra, learned Spl.PP submitted that so far as the sanction order is concerned, it is a valid sanction order and the person who signed the said order is a competent person and he is authorized by the Board. When the sanction order has been relied upon by the Court below, it cannot be held as invalid on the basis of the contentions raised by the appellants herein. Drawing the attention of this Court to the provision of Sections 19(1) and (3)(a) of the PC Act, he submitted that unless and until it is shown by the accused that it is a defective sanction order and there is failure of justice, it cannot be held that it is an invalid sanction order. He further submitted that so far as raising presumption under
15 Section 20 of the PC Act, the learned Spl.P.P. submitted that it is an admitted case of defence by way of offering explanation by accused No.1 that the complainant borrowed the amount from him for purchase of the site and he has repaid the same. So far as accused No.2 is concerned, it is the contention of accused No.2 that the money was thrusted into the pocket forcibly. Referring to this explanation offered by both accused, the learned Spl.P.P. submitted that recovery of the amount from the possession of the accused persons has been admitted as per Exs.P.7 and P.8. Therefore, he submitted that in view of this evidence and recovery of the amount from their possession, initial presumption under Section 20 of the PC Act would arise in favour of the prosecution and it is for the accused persons to rebut the said presumption by way of acceptable and cogent evidence. So far as the pending work with the accused persons is concerned, learned Spl.P.P. submitted that there is no requirement under law. As per the judgment of the Hon’ble Apex
16 Court, it is not necessary that there must be the work pending with the accused persons to show that the accused have committed the said offence. Even though the work to be done is not pending with the said accused, but if the demand and acceptance of the bribe amount is satisfactorily established by the prosecution, then in that case, the Court has to proceed with the evidence of the prosecution though it is established or shown by the defence that no such work is pending with the accused persons as on the said date. Referring to the prosecution material, the learned Spl.P.P. made submission that the learned Special Judge has considered these aspects extensively and has rightly came to the conclusion in holding that the accused are guilty for the offences punishable under Sections 7, 13 (1)(d) read with Section 13(2) of the PC Act. He submitted that the contents of the entrustment mahazar and the contents of the trap mahazar coupled with the oral evidence of the complainant and the other witnesses
17 amply made it clear that the prosecution has placed material to show the involvement of both accused persons in committing the said offences. Lastly, he submitted that there is no merit in the appeal so as to interfere with the order of the Court below and the appeal may be rejected.
I have perused the grounds urged in the appeal memorandum and the judgment and order of conviction passed by the Special Judge at Mysuru, oral and documentary evidence produced by both sides and also perused the decisions relied upon by both sides referred above and the principles enunciated in the said decisions. I have also considered the oral submissions made by the learned Advocates for the parties at the bar.
Let me examine the materials placed on record to ascertain as to whether there was demand for the bribe amount so also acceptance of the bribe amount by
18 accused Nos.1 and 2. In this connection, it is necessary to refer to the contents of the complaint (Ex.P.1). Looking to the complaint, it is mentioned that on 6.8.2008, the complainant attended the RCC roofs work and demanded the part payment of Rs.10,15,000/-. He submitted the bill to Chamarajnagar CESCOM Division office on 30.08.2008. The further allegation is that the Assistant Engineer Sri Prasanna Kumar (accused No.1) demanded Rs.50,000/- in the office at Mysore and the said amount was demanded to put signature on the bills and to process the said bills. At that time, the complainant demanded refund of the security deposit of Rs.1,15,337/- for the years 2006-2007 and 2007-08 which was due to be payable to him. Accused No.1 asked the complainant firstly to pay the amount of Rs.50,000/- and he will attend both the work. When the complainant asked as to when he should pay the said amount, accused No.1 told him to pay immediately. The further averment in the complaint shows that the
19 Assistant Engineer also told to complainant that unless and until, he pays the amount, the work will not be done and asked the complainant to meet the Assistant Executive Engineer Nandish (accused No.2) on the same day that is on 15.09.2008. Hence, the complainant met accused No.2 who also demanded Rs.25,000/- to clear the bills and also to return the security deposit. Therefore, looking to the contents of the complaint, the date is material that the complainant met accused Nos.1 and 2 on 15.09.2008, on which date there was first demand made by both accused persons.
But looking to the oral evidence of PW.1/Complainant in the examination-in-chief at paragraph No.3, has deposed that on 15.09.2008, when he had been to KEB at Mysore, he did not recollect whether accused No.1 was present there or not. The further evidence of complainant goes to show that the witness admitted the suggestion that accused No.1
20 prepared the bill with regard to portion of the amount on 30.08.2008 itself and accused No.1 has submitted the same to the Executive Engineer’s office. He also admitted the another suggestion as true that there was no role of accused No.1 after submitting a bill for payment of portion of the amount to the office of the Executive Engineer in respect of the building constructed at Chamarajanagar. Further, PW.1 admitted the suggestion that there was no role to be played by the accused persons. The next sentence is important, in the cross- examination, when it was suggested that accused No.1 was not come to the office on 15.09.2008, to the said suggestion, PW.1 answered that he is not remembering the same. Though PW.1 states that the demand was made at the first instance on 15.09.2008 by the accused, but he lodged the complaint on 18.09.2008 before the Lokayukta Police. There was delay of three days and PW.1 has not averred anywhere about the said delay of three days.
I have carefully considered the contents of complaint – Ex.P1. In the complaint, there was no mention about the delay of three days. Whereas, in the oral evidence of PW.1 at paragraph No.3 of the deposition, he deposed that after accused demanded the bribe amount from him on 15.09.2008 and as he was not having the money on 15.09.2008, he did not lodged the complaint before the Lokyuktha police immediately. He further deposed that on 18.09.2008, to file the complaint as against accused persons, there was no difficulty for the complainant, rather he was not having the money. This delay of three days in lodging the complaint has not been explained by the prosecution with a cogent and sufficient material.
Perusing the contents of Ex.P2, the entrustment mahazar, there is no mention that the accused demanded the bribe amount on 15.09.2008. But the contents of entrustment mahazar go to show that on
22 18.09.2008, the complainant filed the complaint and has brought intended bribe amount of Rs.75,000/-. Thereafter, the entrustment proceedings were conducted by smearing the phenolphthalein powder on the tainted currency notes. Therefore, even in the entrustment mahazar, it was not mentioned that the demand for bribe amount was made on 15.09.2008. Further, it is also mentioned in the entrustment mahazar that a tape recorder was given to the complainant and instructions were also given by the Lokayuktha Police Inspector to the complainant to keep the tape recorder switched on, when he is going to the office of the accused and to record the conversation in between the complainant and accused persons. But the complainant/PW.1 stated that as he was forgotten to keep the tape recorder switched on, had returned the tape recorder to the Investigating Officer. In the next paragraphs of the entrustment mahazar, it is also mentioned that when the Lokayuktha Inspector questioned the panch witness No.2 that what has
23 happened when he went along with the complainant, punch No.2 stated before the Lokayuktha Police that as the complainant was in perplexed mood he has not keep the tape recorder switched on when he went inside the office of accused on 18.09.2008. Therefore, these contents even in the entrustment mahazar, clearly goes to show that the tape recorder was not at all used by the complainant for recording the conversation alleged to have taken place between himself and the accused persons. Therefore, there is no evidence regarding demand and acceptance of bribe amount, except the evidence of PW.1 and PW.3/shadow witness.
PW.3/shadow witness was asked to accompany the complainant to the office of the accused persons as per the instructions of the Lokayuktha Police Inspector. But perusing the oral evidence of PW.3- Shrishkumar, he deposed that on 18.09.2008 at 12:00 noon, himself and his friend Eshwarappa. G.H., were
24 sent to the Lokayuktha Office and accordingly at 12:30 p.m. they went to Lokayuktha office. There Sathish- Complainant was present and PW.3 and Eshwarappa were introduced to the complainant and they are also informed that complainant has lodged the complaint against accused persons that they are demanding for bribe amount. He has spoken about the entrustment mahazar prepared in the Lokayuktha police, in his examination-in-chief itself and this witness deposed that he stood outside the said construction and complainant went inside and ten minutes later, the complainant came from the said office and touching to his head, he had given the pre-arranged signal to the Police Inspector. They also spoken about the hand wash of accused Nos.1 and 2 and the solution turning to pink color and it was taken in a separate bowls. In the Cross-examination by the learned Spl.PP, for some of the facts witnesses are treated as hostile witnesses and the public prosecutor was permitted to cross-examine this witness. Then
25 suggestion was made by the public prosecutor that on 20.09.2008, when the complainant went inside the CHESCOM office, he also went along with complainant inside the office. Then he also knew that complainant went to accused No.1 and spoken with him and gave the money to accused No.1 and accused No.1 took the amount and kept it in his pant pocket and he has seen the same and he also heard the conversation in between them. Witness denied the said suggestion. Even he denied the further suggestion also that when the complainant went to accused No.2, he also accompanied the complainant and he has also heard the conversation in between the complainant and accused No.2 and even he has seen accused No.2 receiving the amount from the complainant and keeping it in his pant pocket. But the witness denied the further suggestion also. Even he has denied that after giving the amount to accused Nos.1 and 2, himself and complainant came out of the office and gave the pre-arranged signal to Police Inspector. The
26 witness denied the further suggestion that he gave the statement before the Investigating Officer as per Ex.P25. Looking to the cross-examination by Public Prosecutor, the shadow witness had not supported the case of the prosecution regarding the demand made by accused Nos.1 and 2 and the complainant paying the bribe amount of Rs.50,000/- to accused No.1 and Rs.25,000/- to accused No.2 and thereafter, giving the signal. Therefore, evidence of shadow witness is not helpful to prosecution to prove alleged demand for the bribe amount. Therefore, the only evidence remained to prove the demand is PW.1/Complainant. Even with regard to the complainant’s evidence, I have made a detailed reference to the contents of Ex.P1, his oral evidence and even the contents of the entrustment mahazasr – Ex.P2 also. Though, in the complaint he has mentioned that first time the demand for bribe amount was made by accused No.1 on 15.09.2008, but it is not supported by cogent and worth believable material because, he has
27 shown ignorance whether accused No.1 was present or not on 15.09.2008. PW.1/Complainant was not able to answer to the said question and he simply states that he is unable to recollect his memory. Therefore, with regard to the alleged demand on 15.09.2008, on the side of the prosecution, there is no acceptable material. It is submitted by learned senior counsel for the petitioners that if the demand and acceptance of the bribe amount is not established by the prosecution and even the fact of recovery of amount from the possession of the accused persons by worth believable material and evidence, it cannot be held that prosecution proved the charges.
Even the materials can be assessed with regard to the case of the prosecution. It is the case of the prosecution that on 18.09.2008, when the entrustment mahazar proceedings were conducted in the Lokayuktha office, PW.1 was wearing a shirt which was having two pockets and in one pocket bribe amount of Rs.50,000/-
28 payable to accused No.1 was kept in one pocket and Rs.25,000/- payable to accused No.2 was kept in another pocket of the said shirt. I have perused the materials in this regard. Learned counsel appearing for the appellants/accused draw my attention to the cross- examination portion of PW.1 of page Nos.207 and 208 at the bottom in the paper book, wherein, he has stated that he wore the same shirt on 18.09.2008 and 20.09.2008. If it is acceptable, the whole case of the prosecution is going to be falsified.
Perusing the contents of entrustment mahazar, there is no material to show that there is two pockets in the shirt of the complainant. On the contrary, the contents of entrustment mahazar go to show that all the amount of Rs.75,000/- was kept in one pocket. To support the said fact, the prosecution has not seized the shirt of the complainant to show that the same is having two pockets.
Apart from that, it is also the case of the prosecution that after the complainant paying the amount of Rs.50,000/- to accused No.1, he went to the office of accused No.2 and paid the amount of Rs.25,000/- and came out of the office and gave the pre- arranged signal. Immediately, the Investigating officer entered the said office and they caught hold accused No.2, by that time, accused No.1 was not found in the said place and when enquired about the same, the complainant informed that accused No.1 was in his office only and by that time when he gave the pre-arranged signal, he might have gone to some other place. As mentioned in the trap maghzar proceedings, and even in the oral evidence also, he has deposed that Lokayuktha Police caught hold both the hands of accused No.2 and the police also instructed to bring accused No.1. Till accused No.1 brought to the said office, the hands of accused No.2 were caught hold and after bringing accused No.1 to the office, both the hands of accused
30 No.1 were washed and the hand wash of the accused No.1 were taken in separate bowls containing sodium carbonate solution and the solution of the hand wash of right hand so also the hand wash of the left hand. The contents of trap mahazar proceedings, also establish that the hand wash of accused No.2 was also separately taken in two bowls. The solution in both the bowls was turned into pink color. The prosecution also relied upon the report of the FSL i.e., Ex.P.33. I have perused the contents of Ex.P33/FSL report dated 01.12.2008 and also the result of the articles. Looking to the FSL report, serial No.4 and article No.5 is with regard to the right hand wash of accused No.1. Wherein, it is mentioned that light pink colored solution based on Phenolphthalein is positive and the test for sodium Carbonate is also positive. Similar is the result of left hand of accused No.1. In the case of accused No.2, in the FSL report at serial No.9 and article No.10, wherein, it is mentioned that very light pink colored solution of right hand of
31 accused No.2 is positive in both solution based on Phenolphthalein and regarding test for sodium Carbonate is also positive. But sofar as left hand wash of accused No.2 is concerned, perusing the contents of trap mahzar proceedings, there is no specific mention that accused No.2 handled the tainted currency notes in both of his hands. The trap mahazar proceedings are to the effect that sofar as accused No.2 is concerned, it is not mentioned in the trap mahazar proceedings that he received amount in his right hand, counted it and then kept it in the right side pant pocket. Therefore, there is no mention specifically that accused No.2 handled the tainted currency notes from both of his hands. Therefore, result of the FSL report is to be appreciated in view of the contents of trap mahazar.
Apart from that it is submitted by the learned senior counsel for the accused-appellants that even there is recovery of the currency notes from the possession of
32 accused persons, that itself will not be a proof for demand and acceptance of bribe amount, unless and until, the demand and acceptance is established satisfactorily with worth believable material.
With regard to the said aspect is concerned, I have observed that except oral evidence and complaint of the complainant, there is no other material and even looking to the contents of complaint and oral evidence, they are contrary to each other and there is no consistency in between the contents of Ex.P1 and also the oral evidence of PW.1 regarding the demand for the bribe amount. When there is no acceptable and worth believable evidence on the side of the prosecution, it is difficult for the court to accept the case of the prosecution that there was demand made by the accused for the payment of bribe amount of Rs.50,000/- to accused No.1 and Rs.25,000/- to accused No.2. Therefore, in view of this, it requires corroboration by
33 independent witnesses to impose the conviction order on the accused persons. So far as corroboration is concerned, the evidence of PW.3/shadow witness not supports the fact that on 18.09.2008, himself and the complainant went inside the office of the accused persons, but the shadow witness in his deposition deposed that he was standing outside the office of accused persons and PW.1 alone went inside the office and ten minutes later he came out and gave the pre- arranged signal.
Even the story of the prosecution as mentioned in the trap mahazar proceedings and as deposed by the prosecution witnesses, the complainant alone went inside the chambers of accused No.1 and after giving the bribe amount to accused No.1, he came out and gave the pre-arranged signal and when the Lokayuktha Police and other staff rushed to the office of accused No.1, accused No.1 was not at all found at that
34 place, and he went outside and even they caught hold the hands of accused No.2, they have not conducted the further proceedings till accused No.1 alleged to have been brought to the said place. It is also the case of the prosecution that after 30 minutes, accused No.1 was caught hold and brought back to the office and when hand wash was taken separately in two bowls and the same was turned into pink color. It is difficult for the Court to accept the fact that the police and other staff were waited for accused No.1 for half-an-hour, because, this fact is more unnatural and improper which the prosecution tried to make out. For the said period of 30 minutes, accused No.1 went outside and it cannot be presumed that he has not touched any article and phenolphthalein powder was still in his hands. This aspect not acceptable to the conscience of the Court. Apart from that there was no reason for the trap parties to wait for half-an-hour atleast to take the hand wash of accused No.2 immediately. There was no need to wait for
35 half-an-hour till accused No.1 alleged to have brought back to the said place when he went outside. This story of the prosecution cannot be believable or acceptable.
I have perused the principles in the decision relied on by both the side.
The first and foremost thing is to be considered in this case is, whether there was demand for bribe amount by accused persons. Regarding this fact there is no other acceptable material that there was demand and the only thing remains is recovery of tainted currency notes. It is no doubt true that Exs.P7 and P8, the explanation offered by the accused persons, there they have admitted the possession of currency notes with them and recovery by the Investigating Officer. They further stated that the amount was given to the complainant for purchasing the site and the said amount was returned by the complainant. But in this connection,
36 it was argued by the learned special public prosecutor that in the explanation offered under Ex.P7 there is no such statement that it was given for purchase of the site but it was given as loan. But however, even the amount which was taken either for loan or for purchase of site, in any event, if the demand is not established, then the next question arises for consideration is recovery of tainted currency notes. Even, if it is accepted by the Court that recovery of tainted currency notes from the possession of accused, then also the court cannot presume that there is demand and acceptance of bribe amount. Therefore, the decisions relied upon by learned Special Public Prosecutor have to be appreciated with regard to factual matrix involved in each and every case. There cannot be verbatim application of the principles to each and every case. Each case is to be considered by the factual matrix involved in that very particular case. As I have already discussed above, there is no consistency between the oral evidence as well as documentary evidence produced on
37 prosecution side and that there is no consistency regarding the alleged demand for the bribe amount is concerned. Then the only fact remains that the recovery of amount from the possession of accused persons will not help the prosecution in establishing the charges. Exs.P14 and 15 which were said to have been seized during the trap mahazar proceedings. Looking to these documents, they go to show that they are not at all signed by the officials. Exs.P14 and P15 are office memorandums. I have perused the office memorandums and the same was not signed as it is rightly argued by the learned counsel appearing for appellants/accused
I have also perused the other documents produced by the defence as per Exs.D2 to D4 and D6 to D8. Ex.D2 dated 02.11.2011, it is the office memorandum issued from the Chief Engineer to Sri.B.Shivaramegowda, advocate under the right to information act. Looking to the contents of Ex.D2 which
38 go to show that there was no order issued from the said office to accused No.1 during the period from 10.09.2008 to 20.09.2008, for doing the work of Chmarajanagar division. This document clearly make out a case that there was no such work entrusted to accused No.1 during that period. Another document Ex.D3 also to the same effect that no orders are issued authorizing accused No.1 – Prasanna Kumar P, Assistant Engineer (Civil), to supervise the work for the period from 10.09.2008 to 20.09.2008. This period is very important because, it covers the date of 15.09.2008, which is the alleged date for making demand for bribe amount. Therefore, document produced on the side of defence clearly go to show that as on the relevant date there was no official order issued to accused persons putting them in-charge of the said work. Therefore, these documents go to show that no such work was pending with accused No.1 and accused No.2. In this connection, the contention of the learned Special Public Prosecutor
39 referring to the decision of Hon’ble Apex Court that pending of an official work for demand of bribe is not a sine quo non to attract provisions of Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, it is not the requirement that work is to be pending with accused persons, as contended by Spl.PP.
The said principle cannot be disputed by anybody. But when the prosecution took the contention that work was pending with the accused persons, in that case, it is for the prosecution to establish what was the work pending with accused persons. It is no doubt true that if work is pending, demand was made for bribe amount and receipt of bribe amount by accused persons, then it can be said that the accused persons committed the said offence. When it is the specific case of the prosecution that work was pending with the accused persons, the same is falsified by the evidence. The said aspect is not only falsified by oral evidence but also with
40 documentary evidence. As on the said date, they were not at all placed in-charge of the said work.
Under such circumstances, I am of the opinion that those decisions will not come to the aid and assistance of the prosecution. Therefore, looking to the judgment and order of conviction passed by the Court below, some of the important materials were not taken into consideration by the learned Special Judge and more particularly, the documents produced on the side of the defence so also Exs.P14 and 15 which are not at all signed by the concerned persons. They were the important materials which were not appreciated. Hence, perusing these materials, the appellants/accused established their defence that under what circumstances, the accused came in possession of tainted currency notes.
41 26. As I have already observed above, so far as the production of evidence by the accused is concerned, it is not required that they have to prove their defence beyond the reasonable doubt but preponderance of probabilities is enough. Hence, appellant/accused have established their defence and the prosecution has not established its case beyond all reasonable doubt.
Looking to the case of the prosecution, reasonable doubt arises in the mind of the court that whether the incident has taken place in the manner as it is projected by the prosecution. Hence, judgment and order of conviction passed by the learned Special Judge is not in accordance with the material placed on record. Therefore, the said judgment and order of conviction is not sustainable in law. Accordingly, the appeal is allowed, judgment and order of conviction passed by the court below is hereby set aside and appellant/Accused
42 Nos.1 and 2 are acquitted from all the charges, giving the benefit of doubt.
The bail bond executed by the accused Nos.1 and 2 stand cancelled. The fine amount paid if any by accused Nos.1 and 2, be refunded to accused Nos.1 and 2 after the expiry of appeal period.
Sd/- JUDGE
CS/HJ Ct:MHP