SHIVANAND MADIWALAYYA HIREMATH Vs. STATE OF KARNATAKA

JUDGEMENT

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

(2.) The present appeal is by the accused against whom the allegations were of offences punishable under sections 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act', for brevity ). It is alleged that accused no.1 was working as the Chief Officer and accused no.2, who is the second appellant herein, was working as a Junior Engineer in the Town Municipal Council, Athani in November 2007. The complainant was a class-II civil contractor who was entrusted with the work of development of the garden in Re- Survey No.596 of Athani apart from laying a China Lawn pursuant to the work order dated 25.2.2007, issued by accused no.1. Initially the work order was in respect of land measuring about 150 square feet. The total area was increased to 3228 Square Feet and he was orally directed to make lawn over the entire area and this was ratified by the resolution of the Town Municipal Council. It is pursuant to the same that the work was completed and the bill was submitted in respect of the work done for a sum of Rs.2,12,188/-. The work was measured and approved by accused no.2 and had recommended for payment of the bill. It is pursuant to the submission of the bill that accused no.2 had made a demand for a bribe of Rs.1,00,000/- on behalf of accused no.1, in order to disburse the cheque towards the payment of the bill. It transpires that the complainant had personally met accused no.1 requesting the issuance of the cheque and there was yet another demand for bribe of Rs.1,00,000/-. The complainant tried to pursuade the appellants to issue a cheque but since they were adamant in demanding the bribe, the complainant had approached the Lokayukta Police on 22.11.2007 with the complaint. Pursuant to which, the proceedings were initiated and an elaborate trap was prepared in order to apprehend the accused in the act of receiving the bribe amount. Consequently, the entrustment mahazar was drawn up wherein the panch witnesses and the complainant as well as the shadow witness were to be put through the drill of the manner in which the trap would be executed and the process of handing over the phenolphthalein powder tainted currency notes to the accused on demand was also explained and the entire team consisting of the Police Inspector, his staff and panch witnesses, the complainant had proceeded to the office of the accused. While the police party waited at a discrete distance, the complainant and the shadow witness are said to have approached the accused and on a demand being made for the bribe amount, the same had been handed over to accused no.1, who in turn, had sent for accused no.2 and handed over the same to him, at which point of time, on signal by the complainant, the Police had descended on the scene and had arrested them, apart from seizing the bribe amount and also establishing that the accused had handled the tainted currency notes by subjecting their hands to be washed with Sodium Bicarbonate solution in order to establish that the solution changed colour by virtue of the currency notes having been handled by both the accused. It is on collection of such evidence and the drawing up of a seizure mahazar, that further proceedings were taken and the accused were charge sheeted.

(3.) The learned Senior Advocate Shri Ravi B Naik, appearing for the Counsel for the appellants would firstly point out that it was incumbent on the prosecution to establish that there was demand and acceptance of the bribe amount In this regard, the prosecution, had examined the complainant and the shadow witness, to establish the factum of such demand and receipt of the bribe amount, even according to the trial court, both these witnesses had turned hostile and did not support the case of the prosecution, but notwithstanding the same, the case of the prosecution stood established. The Court has also held that though the said witnesses had been won over by the accused, the prosecution had established its case beyond all reasonable doubt. This, the learned Senior Advocate would submit is inexplicable, as if the material witnesses who were fielded in support of the prosecution case, as to the demand and acceptance having resiled from their statements and not having supported the case of the prosecution, there was no other evidence, on the basis of which, the court could have concluded that the prosecution had established its case beyond all reasonable doubt.