T.N. GURUMURTHY Vs. STATE

JUDGEMENT

(1.) THIS appeal is against conviction. The case against the appellant, who was the accused before the trial court, was as follows: - On 14.6.2002, one Praveen D'Souza had submitted an application for khata bifurcation in respect of site nos. 28 and 29, at Maruthi Nagar, Madivala New Extension, Bangalore. The property was said to have been gifted to the said D'Souza by his father. A copy of the gift deed, encumbrance certificate, tax paid receipt, etc., had been submitted along with the application. It was the case of the said applicant that after a week, the present appellant, who was the Revenue Inspector in the office of the Assistant Revenue Officer, Madivala Range, Jayanagar, Bangalore, had visited the above said property for inspection and it was alleged that he demanded Rs. 9,000/ - from the said D'Souza to process the application. It transpires that on 28.9.2002, D'Souza visited the ward office and met the appellant and it transpires that the appellant repeated his demand for bribe. After much negotiation, the amount was scaled down to Rs. 5,000/ -. But however, D'Souza, who was not inclined to pay any bribe, had approached the Deputy Superintendent of Police, Karnataka Lokayukta, City Division, Bangalore and is said to have lodged a written complaint. On the basis of the said complaint, a case was registered in Crime No. 33/202 and was forwarded to the Court of the Special Judge. In the course of investigation, a successful trap was laid and it is claimed that a sum of Rs. 5,000/ - was recovered in the presence of witnesses and a panchnama was drawn up. Thereafter, after obtaining the requisite sanction from the Commissioner of Bruhat Bengaluru Mahanagara Palike, a charge sheet was filed against the accused for offences punishable under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity). Thereafter, charges were framed and the appellant had pleaded not guilty and claimed to be tried. The prosecution had examined 6 witnesses and marked 19 documents apart from material objects. The accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.P.C.', for brevity), who had denied the incriminating circumstances appearing against him and had examined two witnesses on his behalf and placed reliance on Exhibits D. 1 to D. 4. After hearing the prosecution and the accused, the trial court had framed the following points for consideration: -

(2.) THE learned Counsel for the respondent, on the other hand, would seek to justify the findings of the court below. It is pointed out that the court below, after taking into consideration the evidence of PW.1, has held that there was a prior demand of bribe, as clearly stated in the complaint, which has been corroborated by PW.3 as regards the demand made by the accused on the date of trap. The attendant circumstances and the contents of the panchanama, according to the court below, had established the demand for bribe. Insofar as the acceptance of bribe is concerned, the court below having held that the oral testimony of PWs. 1, 3, 4 and 6 would establish the recovery of tainted currency notes from the possession of the appellant and the hand wash having yielded positive results, the acceptance of the bribe was also established. Insofar as the evidence tendered by the appellant is concerned, apart from his denial that there was demand for bribe, on the other hand, the complainant was required to pay several amounts in order to have his application processed, such as the tax arrears, khata bifurcation fee, stamp duty etc., and which the complainant wanted the appellant to attend to and therefore had' thrust the money on him, even though the appellant was protesting that it was not his part of the duty to do so. The appellant had examined one J.M. Prakash, Revenue Inspector at the relevant point of time at the Office of the ARO, Madivala, had spoken about the duties, which the appellant was usually required to be carried out in a day's work and that during the most part of the day, he would be attending to field work and it is only at 3 p.m., that he would return to the office. The next witness DW.2 was a Second Division Clerk at the office of the ARO, Madivala Range and he had stated that Exhibit D.1, was the file pertaining to khata bifurcation and he had spoken about the application filed by the complainant and of the endorsement made by the ARO, to refer the file to the present appellant and he had further stated that the appellant had made an endorsement on the application and had sent the file back, which when placed before the ARO, an order was passed that after the completion of the building of the first floor, the complainant could apply for bifurcation of the khata and on the basis of which, the said witness had issued an endorsement Exhibit P.4, which was dispatched to PW.1, the complainant. He had further deposed that there was no reply to the endorsement and that the file was not processed further and remained in his custody and it was handed over to the Lokayukta Police on 30.9.2002 at about 4.30 p.m. when they asked for it. He had also endorsed that the appellant had signed the attendance register at 3 p.m., on 30.9.2002. However, the trial court has proceeded to hold that the prosecution has proved, beyond all reasonable doubt, the demand and acceptance of bribe. Insofar as the evidence of DW 2 to the effect that he was the custodian of the file and that he had handed over the file to the Lokayukta Police has been negated in the face of the evidence of PWs.1, 3, 4 and 6, who had consistently stated that the file was produced by the appellant during the trap panchanama and that was also recorded in the trap panchanama Exhibit P. 11 and the court below has found that DW.2 had nowhere affixed his signature or initials on the file for having received or having put up the file before other officers and therefore," has disbelieved the evidence of the said witness. The court below has also disbelieved that the endorsement said to have been issued by the ARO had been handed over to PW.1 by DW.2, as it was contrary to the other evidence that was on record, including that of the appellant himself. The other crucial circumstance, which according to the court below, which was against the defence of the appellant, that there was an admission by DW.1 that Exhibit D.1(a) was in the handwriting of the accused. Exhibit D.1 (a) is the reply said to have been issued on behalf of PW.1, the complainant, to the endorsement said to have been issued to him and as the complainant did not know the Kannada language, the appellant is said to have written on his behalf and this handwriting has been admitted to be that of the appellant and this has not been denied either in the cross -examination or any endeavour made to disprove the same. Therefore, the court below has concluded that the endeavour on the part of the appellant that he was never in the office till 3 p.m., on the date of the trap, was belied by the said writing having been established, in that, it was the case of PW.1, the complainant, that the said reply was given between 12.30 p.m. and 1.30 p.m. The court has also placed reliance on a micro cassette, MO. 13, which is said to have been played in the open court and the conversation transcripted in the evidence of PW.6. The court below, however, has proceeded to hold that even without the assistance of the tape recorded conversion, the prosecution had established its case and therefore the defence set up by the appellant is not relevant and has thus convicted the appellant. Having regard to the rival contentions, firstly, the evidence of the complainant has been held by the court below to be sufficient proof of a prior demand for bribe made by the appellant. Such an opinion cannot be accepted. Further, on the date of inspection by the appellant, of the premises of the complainant, it was evident that the construction was not completed on the first floor, in respect of which, khata bifurcation was sought. It is also not in dispute that there was an endorsement issued by the ARO, to the effect that till the construction was completed, the question of processing any application for bifurcation of khata was not possible and this apparently was also brought to the attention of the complainant. Therefore, notwithstanding any reply that may have been submitted to the said endorsement at the alleged instance of the appellant, it was to the knowledge of the complainant that the bifurcation of khata could be made only on the completion of the construction and it was also to his knowledge that the actual authority, who could pass an appropriate order for such bifurcation, was not the appellant. Therefore, in the face of such circumstance, in the absence of a possibility of the appellant being in a position to extend a favour, in return for illegal gratification, being present. It is not clear as to how the court below after noticing the said circumstance, has merely proceeded on the basis that the tainted currency notes which were prepared for the purposes of trap having been handed over to the appellant and the same having been recovered from his possession, would establish the demand and receipt of illegal gratification, when it is plain that the appellant could not provide the complainant with any benefit by way of issuing a khata bifurcation certificate. The further explanation offered by the appellant to the effect that in view of the endorsement issued by the ARO, any further progress in seeking bifurcation of khata could only be done on other formalities being complied with, such as, payment of bifurcation fee, arrears of property taxes, stamp duty payable, etc., including material to establish that the building on the first floor has been completed. Further, even according to PW.1 and the shadow witness, the question posed at the time of the trap by the appellant as to whether the money had been brought, was with reference to the said fee and charges and it could not be construed that it was a demand for bribe. The complainant not being in a position to attend to the formalities, having made a request to the appellant that he may kindly attend to those formalities and having handed over or thrust the money on him and at that moment, the Lokayukta Police having materialized, and having apprehended the appellant and having recovered the said tainted money from his possession, could also be attributed as being money forcibly thrust on the appellant towards the aforesaid expenses and not really as bribe. This is a second view that was possible, but has been negated by the trial court.