B G SHIVASHANKARASWAMY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS is an appeal filed by the convicted Appellant-accused, being aggrieved by the judgment and order of conviction dated 18.03.1997, passed by the Special Judge, Bangalore Urban & Rural District, Bangalore, in Spl.C.C.No.28/96, holding the appellant-accused guilty of the offences punishable under Sections 7 & 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988.

(2.) THE brief facts leading to this case are as follows: It is alleged that PW2-K.N. Ramesh Reddy passed B.Sc. final year examination in the year 1992 and during the third week of November 1992, he had approached the accused regarding issue of provisional certificate. PW2 was asked to come and meet the appellant-accused three or four times and finally the appellant-accused demanded Rs.50/- by saying that he has to give the said amount to the Superintendent for issue of provisional certificate. THErefore, PW2 told the appellant to keep the certificate ready and he will come and collect the same after paying the bribe amount of Rs.50/- on Monday. It is the further case of the prosecution that on 23.11.1992 around 11 a.m., PW2 had been to the Office of PW6-Dakshina Murthy, DY.S.P, Lokayukta, City Division and presented a complaint-Ex.P.4 before him. Accordingly, PW6 registered the case in Crime No.24/92 under Section 7 of the Prevention of Corruption Act, 1988 and submitted the F.I.R. to the Court. THEn he secured presence of panchas namely PW1-H. Umesha and one M. Mahantesh and called PW8-A.B. Sudhakar, Inspector of Police, Lokayukta and handed over the papers to him and asked him to do further investigation. Accordingly, PW8 drew Entrustment Mahazar-Ex.P.1 in the presence of PW1 and another pancha witness, M. Mahantesh. THErefore, the tainted three currency notes, (two notes of Rs.20/- denomination and one note of Rs.10/- denomination) totaling Rs.50/- were handed over to Sri. M. Mahantesh. In turn, M. Mahantesh kept the notes in the pocket of PW2 and PW2 was directed to hand over the tainted notes to the appellant-accused only in case of demand. THEreafter, the hands of M. Mahantesh were washed and the same was turned into pink colour and the resultant wash was collected in a separate bottle and sealed. THEreafter, PW1 was directed to accompany PW2 to the office of the appellant and PW2 handed over the tainted currency notes to the right hand of the appellant-accused and he kept it in his right side pocket. THEreafter, PW2 gave a signal by combing his hairs as instructed by the Police. Immediately, PW8 and other raiding party went there. After noting the panchas, PW8 questioned the appellant-accused about the amount given to him by PW2 and the tainted notes were seized from him and a detailed mahazar was drawn in front of the panchas. THEreafter, PW8 submitted those M.Os.1 to 8 to chemical examination and after securing the report and after recording the statement of prosecution witnesses, PW8 & PW6 and after securing the sanction order from PW3-N. Ramananda Shetty, the then Vice-Chancellor of Bangalore University to prosecute the accused, PW8 handed over further investigation to PW7-S.V. Shashidar, the then Police Inspector, B.O.I., Lokyukta. He submitted charge sheet against the appellant for the aforesaid offences.

(3.) LEARNED Counsel for the appellant took me through the entire evidence and vehemently contended that the impugned judgment is contrary to law and evidence on record and the Court below has not properly applied its judicious mind while considering the entire evidence of the prosecution placed on record. Highlighting the same, he contended that the prosecution has utterly failed to examine the alleged material (panch) witness namely M. Mahantesh, who stated to be the pancha of Entrustment Mahazar-Ex.P.1. It is submitted that there is full of major contradictions and omissions in the evidence of the prosecution witnesses. More particularly, in the evidence of PWs1, 2 and 8. It is submitted that, PW8-A.B.Sudhakar, Inspector of Police has no power or authority to conduct the raid and to investigate the case. As per the provisions of Prevention of Corruption Act, 1988, the Dy. S.P., Lokayukta alone has power to investigate the case. It is further submitted that in the instant case, PW6-Dakshina Murthy, Dy. S.P. is said to have been authorised PW8-A.B. Sudhakar, Inspector of Police, Lokayukta, to conduct the trap, which is contrary to the provisions of the said Act. Therefore, the prosecution has utterly failed to prove the charge leveled against the appellant-accused. Further, it is contended that the prosecution has got examined other circumstantial witnesses, who were all stated to have been present in front of the room of the appellant-accused, who had also come there for securing the provisional certificates. Non examination of the material witnesses namely the circumstantial witnesses are fatal to the case of the prosecution. It is submitted that the day on which the appellant-accused alleged to have demanded bribe (on 21.11.1992) is a holiday. Therefore, the question of approach of PW2 to the appellant-accused on a holiday and the alleged demand of payment of bribe to PW2 by the appellant-accused do not arise. Therefore it is submitted that the findings recorded by the court below is perverse, illegal and incorrect and the same is liable to be set aside and appellant-accused may be acquitted.