C.B. NAGARAJ Vs. STATE BY LOKAYUKTHA POLICE

JUDGEMENT

(1.) THIS appeal is against the judgment and order of conviction and sentence in Special Case (Lokayuktha) No. 8/2007 dated 23.12.2011, passed by the learned Principal District and Sessions Judge, at Davanagere. The case of the prosecution against the appellant, who was the accused before the trial court, was as follows: - When the accused was working as an Extension Officer, in the office of the Taluka Panchayath, Davanagere, had demanded an amount of Rs. 1,500/ - as illegal gratification from the complainant, one E.R. Krishnamurthy, to favour him in submitting the certificate to the District Officer, Backward Community and Minorities welfare Department, certifying that the complainant belonged to II -A category. The accused had received the said amount of Rs. 1,500/ - as illegal gratification from the Complainant and there was misconduct in the discharge of his official duties and thereby committed 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). The accused pleaded not guilty and claimed to be tried. The prosecution examined 9 witnesses, PW. 1 to PW. 9 and marked 30 documents, Exhibits P.1 to P.30, in support of the charges. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as 'Cr.P.C., for brevity) was recorded. In the course of the proceedings, the accused had admitted to the fact that the complainant had applied for a Caste Certificate in respect of his appointment as a Primary School teacher under Category -IIA and that application was sent to him for inspection. But, the accused had denied of demanding and acceptance of the amount as illegal gratification. The accused has also explained the circumstance that he had been entrusted with issuance of Caste Certificate and therefore, he visited the place of the complainant, who was also a son of a teacher, and found that the complainant was suffering from illness. The accused, therefore, gave Rs. 1,500/ - to the complainant for treatment and asked him to repay the said amount whenever was possible. On 7.2.2007, when the complainant was informed by the accused that he had sent the report, the complainant told him that he would repay the amount and accordingly, he came in the evening and repaid the amount borrowed from the accused. The accused, in support of his defence, had examined one Krishnappa as DW. 1 and examined 8 documents, Exhibits D.1 to D.8. The trial court has framed the following points for its consideration on the pleadings and the defence set up: - 1. Whether the prosecution proves that the accused being a public servant while working as Extension Officer, in Taluka Panchayath, Davanagere, on 7.2.2007 at about 12.30 p.m. in his office demanded an amount of Rs. 1,500/ - as illegal gratification as a motive or reward from the complainant E.R. Krishnamurthy, to show an official favour i.e., for submitting the certificate to the District Officer, Backward Community and Minorities Welfare Department certifying that the complainant E.R. Krishnamurthy belongs to II -A category, who has been selected as teacher under the said category, in Yadagiri Educational District, and on 7.2.2007 in between 5.30 p.m. and 5.45 p.m. in his office accepted the above said amount of Rs. 1,500/ - as illegal gratification as a motive or reward from CW 1 to show the above said official favour, thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act 1988?

(2.) WHETHER the prosecution further proves that on the above said date, time and place, accused being a public servant while working as Extension Officer, in Taluka Panchayath, Davanagere as Extension Officer, in on 7.2.2007 in between 5.30 p.m. and 5.45. p.m. in his office obtained a sum of Rs. 1,500/ - by corrupt or illegal means from CW 1 for showing the above said official favour and has committed misconduct in the discharge of his official duty, thereby committed an offence punishable under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988? The Trial Court answered both the points in the affirmative, and convicted the accused for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the PC Act. And the accused was sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs. 2,000/ -, in so far as the offence under Section 7 of the PC Act. Further, in so far as the offences under Section 13(1)(d) read with 13(2) of the PC Act was concerned, the accused was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs. 3,000/ -. The sentences were ordered to run concurrently. The period of detention in judicial custody, if any, was ordered to be given set of in the sentence that was imposed. It is that which is under challenge in the present appeal. Heard the learned counsel for the appellant and the respondent. 2. The learned counsel would contend that there is no reason to disbelieve the evidence of DW -1, especially when the same was not challenged at all in his cross -examination. The prosecution was required to establish the factum of demand and receipt of payment of the bribe amount. From the evidence tendered it cannot be said that the same has been established, prima facie, let alone beyond all reasonable doubt. The alleged recovery of the bribe amount from the appellant by itself would not be sufficient to prove the charge. It is contended that having regard to the rank of the appellant and the nature of duties assigned to him, namely, to verify the caste and income particulars of the family of applicants seeking a caste certificate, required him to visit their place of residence and make other enquiries. The mahazar drawn up by him on completion of such verification is only an input for the actual body which would scrutinize the eligibility of the applicant, namely, the Caste Verification Committee, headed by the Deputy Commissioner of the district, and hence the role of the appellant was perfunctory and could not confer any final benefit on anyone. Therefore, the case of the prosecution that he was in a position to demand and accept bribe to extend any official favour is improbable. It is further contended that at the time the appellant visited the complainant at his home to verify his particulars - he was found to be seriously ill and had no money for medical treatment. The appellant on humanitarian consideration had lent him money and it was this loan, according to the appellant, which was returned to him at the time that the alleged trap was executed. This circumstance is endorsed by both PW -3 and PW -5, who have supported the case of the appellant that it was money lent by the appellant which was returned by the complainant. The shadow witness and the complainant had both stated that money was paid, there is no assertion that it was bribe amount. That the trial court had failed to appreciate that after forwarding the validity certificate to his higher ups, at 12:30 PM itself, and it is totally improbable that the appellant could have made any demand for bribe from the complainant at 5:30 PM, as there was no scope for extending any favour to the complainant at that point of time. The added circumstance that the file pertaining to the complainant had left the table of the appellant much before the date of trap and it was all the more improbable that he was in a position to demand bribe in order to expedite the dispatch of the validity certificate. It is in the above vein that the learned counsel for the appellant would contend that the appeal be allowed and the appellant be acquitted.