M.S. SURENDRA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is filed against conviction of the appellant for offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity). The facts are, the appellant herein was working as the Village Accountant of Yelwala circle, Mysore. One Basamma of Karaganahalli, within the jurisdiction of the appellant, had lost her husband in the year 2001. She had hence sought for change of khatha in respect of certain land bearing survey no. 146/P, P2 - in her favour. She was illiterate and had hence sought the assistance of one Rajanna. He had submitted the application on her behalf. It was alleged that when Rajanna met the appellant in this regard, there was a demand for a bribe of Rs. 9500, to effect the change of khatha. Rajanna is said to have paid Rs. 1000/ -. As there was demand for the remaining amount to be paid by 22.12.2007. Rajanna had proceeded to the office of the Lokayuktha on 22.12.2007 and lodged a complaint as regards the demand for illegal gratification by the appellant. A case was registered and immediate preparations were made for a trap to be laid against the appellant. After going through the necessary drill of securing persons to act as panch witnesses and treating currency notes to be paid as the bribe with phenolphthalein and demonstrating to the witnesses as to the manner in which the process worked -and after drawing up an entrustment mahazar, the entire team consisting of the complainant, the witnesses and the police had proceeded to the office of the appellant. The complainant and a shadow witness are said to have approached the appellant, while the others waited at a distance, when the bribe amount had been paid, allegedly on the demand of the appellant, by the complaint and received by the appellant -the police are said to have swooped down on the appellant, at the signal of the complainant, and apprehended him with the bribe amount. After carrying out other formalities of collecting evidence of the complainant having handled the tainted money and recovering the currency notes from him and after further proceedings, the appellant had been charge -sheeted. Thereafter the trial court having framed charges against the complainant, he had pleaded not guilty and claimed to be tried. The prosecution had examined 10 witnesses and had marked several documents and material objects, to establish the charges against the appellant. The appellant was examined under section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.P.C.', for brevity) and after hearing both the sides, the trial court had found the appellant guilty of the offences alleged and imposed the punishment of rigorous imprisonment for one year and to pay a fine of Rs. 20,000/ - for offences punishable under sections 7 and 13(2) read with Section 13(1)(d) of the PC Act. It is that which is under challenge in this appeal.

(2.) THE learned counsel for the appellant contends as follows: The trial court has not considered in its proper prospective, the evidence on record of CW -4 Basamma, in whose name the application for change of khata in respect of certain lands came to be filed in the office of the appellant. It is her specific evidence that she has not given any application for change of khata through complainant -Rajanna. The statement of the accused at the earliest point of time i.e., when the Mahazar was drawn after the conduct of the trap on the appellant, that the appellant was in the habit of taking hand loans from the complainant, which statement of the appellant has been supported by the evidence of the complainant has been completely ignored by the trial court before coming to the conclusion of appellant being guilty of accepting bribe at the hands of the complainant. The court below has committed a grave mistake in coming to the conclusion the amount of Rs. 8,500/ - received by the appellant amounts to bribe in the absence of there being any positive statement in support of the same by the complainant, the complainant being the author of the entire proceedings. It is contended that in the evidence of PW -5, who is the shadow witness, there is absolutely no mention about the conversation of either the amount being demanded or accepted in relation to the application for change of khata allegedly made by Basamma. The trial court has totally lost sight of the fact that the appellant is not the final authority in so far as effecting the change of khata and that he is only a recommending authority and that it is the Tahsildar, who is the ultimate authority for ordering change of khata. The court below has committed a grave mistake in holding the appellant guilty, when admittedly, the proceedings file, Exhibit. 31 shows that the appellant was not holding the file on the date of filing the complaint and that nothing remained to be done on the part of the appellant in respect of the said file. Hence, there was no occasion for the trial court to record a finding of guilt against the appellant. That, the procedure thereafter does not involve the participation of the appellant in his official capacity in whatever manner. Hence, the indictment of the appellant for the alleged act discharged by the other officials calls for interference from this court. The learned counsel for the appellant would take this court through the reasoning of the court below and would demonstrate that the trial court was not justified in arriving at findings totally divergent with the evidence on record, to the prejudice of the appellant.

(3.) ON a careful consideration of the rival contentions and the material on record. The complainant was examined as PW -1 and Basamma on whose behalf the complainant was acting was examined as PW - 4. They have not supported the case of the prosecution. PW - 1 had proved himself to be a turn coat and was treated as a hostile witness. The question that would straight away arise for consideration by this court is whether the trial court was justified in holding that notwithstanding the witness PW -1, who had completely denied his role in the entire case, could still enable the court to place reliance on incidental material and still hold that there was evidence to support the case of the prosecution. The reasoning of the trial court runs thus: ... But the witness has gone to the extent of denying the fact of he giving complaint to the Police. The Photographs marked as Ex. P4 to Ex. P8 discloses that those photographs were taken at the time of Entrustment Mahazar and the witness has also admitted that he appears in those photographs. Surprisingly, the witness has stated before Court that, his signature to Ex. P1 was taken by one Lingaiah and except that, he do not know anything and no proceedings were held in his presence in Lokayuktha Office. From the evidence of P.W. 1, it is crystal clear that the witness is won over by the accused and therefore he has come to the Court to give false evidence. As pointed out supra, Ex. P1 is given by the witness and he has identified his signature in the said document. It is not possible to believe the say of P.W. 1 that his signature was taken by some other person to Ex. P1 and he had signed that document without knowing its contents. Since the photographs marked as Ex. P4 to Ex. P8 makes it abundantly clear that the complainant was present when Entrustment Mahazar was prepared after sprinkling Phenolphthalein Powder on the bait amount, the say of P.W. 1 that no proceedings were held in his presence is nothing but a falsehood. The fact that the complainant has received the amount of Rs. 8,500/ - through cheque from Lokayuktha Police and has encashed he said cheque, which was given to him in lieu of the amount of Rs. 8,500/ - given by him to Lokayuktha Police at the time of trap makes it abundantly clear that the witness has come to the Court intentionally to give false evidence in order to help the accused. Anyhow, the evidence of P.W. 1 regarding he signing the complaint as well as entrustment mahazar and recovery mahazar and the contents of the complaint marked as Ex. P1 and the photographs at Ex. P4 to Es. P8 makes it abundantly clear that the complainant in fact had given the complaint at Ex. P1 to the Police and he was also present with Lokayuktha Police when entrustment mahazar was prepared in Lokayuktha Office. The Photograph at Ex. P7 makes it clear that P.W. 3 had kept the bait amount after sprinkling with Phenolphthalein Powder in the shirt pocket of the complainant. Therefore, the say of complainant that there was money transaction between him and the accused cannot be believed. It is to be noted that P.W. 1 has specifically stated that he was not taken to the office of accused at the time of trap. But the explanation given by the accused to the Investigating Officer at the time of trap, marked as Ex. P12 makes it clear that at the time of trap, P.W. 1 did paid Rs. 8,500/ to the accused. The accused in his explanation at Ex. P12 has stated that he had requested the complainant to lend money to him and he contacted him through phone and afterwards he paid Rs. 8,500/ - to him. All these evidence on record makes it abundantly clear that the complainant was present in Taluk Office when accused was trapped and he handed over the bait amount to the accused at the time of trap. The court has then held that the panch witnesses were independent witnesses whose testimony has not been dented and that coupled with the evidence of the Investigating Officer and other witnesses has established the case of the prosecution. In the opinion of this court, it cannot be accepted that the prosecution had established its case when the very complainant had refused to support the case. The endeavor of the court below to sustain the case of the prosecution by recourse to a novel exercise of placing reliance on material which is totally denied by the author thereof, to overcome the same, cannot be permitted on the possible test of a "preponderance of probability", this would cause serious prejudice to the appellant and results in a certain miscarriage of justice. Even the evidence of the shadow witness would not entirely support the case of the prosecution. It may even support the defence pleaded by the appellant, to the effect that the money demanded and received was a private money transaction between the complainant and the appellant, who had regular transactions between them. Therefore, there is no hesitation in holding that the trial court was in error in concluding that the prosecution had established its case beyond all reasonable doubt. In the result the appeal is allowed. The judgment of the court below is set aside. The appellant is acquitted. Fine amount if any paid by the appellant shall be refunded.