SHOBHA SIDRAMAIAH HONGALMATH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned Special Public Prosecutor.

(2.) The present appellant was accused no.2 in Special Case No.9/2005 before the Court of the IV Additional District and Sessions Judge, Belgaum. The case of the prosecution was that one Mohan Kuriyalkar was an ex-serviceman. He had joined services of Shiva Industrial Security Agency as a Security Guard and he required a gun license in order that he could work as security guard. Therefore, on 9.4.2003 he had applied for a gun licence before the office of the Deputy Commissioner, Belgaum. On 18.6.2003, he had received a letter from the Tahsildar, Belgaum to furnish certain particulars, in order to process his application, which was sent to the Superintendent of Police, Belgaum for verification and after verification by the Belakavadi Police, it was again sent to the Deputy Commissioner's office along with the verification report. But since the license was not issued inspite of the same having been processed, the complainant is said to have met accused no.1 R.S.Patil, who was working as Sheristedar and inquired about his license. Accused no.1 is said to have instructed the complainant to submit further documents and also deposit the license fee. This was complied with. But since there was no progress, the complainant has again said to have met accused no.1, who in turn directed the accused no.2, the present appellant. It is alleged that the present appellant had demanded a bribe of Rs.5,000/- to forward the application for issuance of license in favour of the complainant and after further negotiation, the bribe amount was reduced to Rs.3,000/-. Since the complainant was not inclined to pay any such bribe amount, he had approached the Lokayukta Police, Belgaum along with one Balachandra Chavhan. Since the complainant was not familiar with the Kannada language and since Chavhan was conversant both with Marathi and Kannada, he had accompanied the complainant. Therefore, on the basis of the complaint written by Chavhan at the instance of the complainant and pursuant to the same, proceedings were initiated and a case was registered in Crime No.5/2003 against accused no.1 and the present appellant for offences punishable under sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity). Thereafter, elaborate proceedings were taken to trap the accused in the process of demanding and receiving the bribe amount and therefore, the exercise of instructing the complainant and the shadow witness of the manner in which the trap would be laid and after entrusting the bribe amount consisting of currency notes which were treated with phenolphthalein powder, in order to establish the receipt of such money by the accused, the entire Police party consisting of the Police Inspector, his staff, the complainant, the shadow witness as also the friend of the complainant Chavhan, who had written the complaint in Kannada language to the dictation of the complainant, had proceeded to the office premises of the accused. It is in this background that the complainant, the shadow witness as well as PW.8, the scribe had approached accused no.2 with the bribe amount.

(3.) The learned Counsel for the appellant would contend that in order to establish the case of the prosecution, it was necessary that the ingredients of the offence punishable under Section 13(1)(d) ought to have been established. The circumstance that the complainant PW.1 and the shadow witness PW.4 had turned hostile and had not supported the case of the prosecution rendered the case of the prosecution a nullity and notwithstanding the same, the court below having found that the charges had been proved by the prosecution beyond all reasonable doubt is untenable and has resulted in a miscarriage of justice. The learned Counsel would submit that the sine qua non of the offence punishable, as aforesaid, is demand and acceptance of the bribe amount, which if not established by recourse to the positive evidence of the complainant and the shadow witness, which is the primary endeavour of the prosecution, the case cannot be sustained on the basis of the alleged testimony of other witnesses, which would have no significance if the complainant does not stand by the original allegation of demand for bribe having been made. In the light of the serious inconsistencies and discrepancies in the case of the prosecution, it cannot be said that the same has been established beyond all reasonable doubt. One other significant circumstance, which the learned Counsel for the appellant would point out, is that the appellant was a second division clerk and was not in a position to afford any official favour, in respect of which, a demand for bribe could have been made, in that, it was the Deputy Commissioner, who was the competent authority to have issued the license. Further, it is admittedly the Sheristedar, who was in a position to forward the same to the competent authority and even if there was any such demand to be made, it could, at best, stop at the level of the Sheristedar and it could not be attributed to the appellant at all, who was merely a second division clerk, working at the direction and supervision of the accused no.1 Sheristedar. When the court below has found fit to acquit the accused no.1 as it was opined that no case was made out against accused no.1, the benefit of doubt not being extended to the appellant as well results in an arbitrary decision insofar as the demand and acceptance of the bribe amount is concerned. If indeed it was claimed to be bribe amount to extend an official favour, it stood to reason that accused no.1 should have been held to blame as well and the reasoning of the court that it was the appellant who is said to have made a demand for the bribe amount, when no such possibility of extending any official favour rested with the appellant, cannot be accepted.