K.S. Panduranga vs State of Karnataka

V. Jagannathan, J.—This appeal is by the accused who had been convicted by the trial court in respect of the offences punishable under

Sections 7, 13(1)(d) r/W 13(2) of the Prevention of Corruption Act, 1988 and being sentenced to one year R.I. and to pay a fine of Rs. 10,000/-

for the conviction u/s 7 and four years R.I, and to pay a fine of Rs. 15,000/- in respect of the conviction for the latter offences, default sentence

was also passed by the trial court in the even of default of fine amount.

The prosecution case in short is that, the accused-Appellant while working as Superintendent of Karnataka Vidyuth Karkhane (KAVIKA),

Bangalore, demanded. Rs. 10,000/- from the complainant Prakash in order to give more transport loads in respect of transport of transformers

from Bangalore to various places all over Karnataka. The complainant had entered into a lease agreement with KAVIKA and under the lease

agreement, which was for the period from 15.09.2000 to 14.09.2001, the complainant was required to transport transformers. AS the

complainant was getting less and less transport work, he met the accused, who in turn demanded bribe of Rs. 10,000/- and unless the bribe

amount is paid, the accused told the complainant that no loads would be allotted to the complainant''s company. The complainant being the owner

of Prakash Transports; told the accused that Rs. 10,000/- cannot be paid and accused brought down the bribe amount to Rs. 5.000/ -As the

complainant was not willing to pay the bribe amount, he approached the Lokayuktha and lodged his complaint as per Ex. P1.

The investigating agency thereafter followed the usual procedure after getting the entrustment mahazar drawn Ex.P2 and everything was set

down for trap of the accused. PW-1 the complainant was also given instructions to give the signal after paying the amount to the accused. PW-2

was a shadow witness who was to be present during the trap incident. The sanction order was issued by PW-4 and the two I. Os'' were P Ws 5

& 6. Charge sheet was filed on completion of the investigation.

Accused on pleading not guilty, the prosecution therefore led the evidence by examining P Ws 1 to 6 and marking documents Exs.P1 to P12

apart from M Os 1 to 12. Accused denied the prosecution case and lad the defense evidence by examining DW-1.

Learned trial Judge after appreciating the evidence on record hold that, the prosecution had brought home the guilt of the accused beyond all

reasonable doubt as the evidence of the complainant PW-1 was fully corroborated by the shadow witness PW-2 apart from the official witnesses.

The hand wash of the accused turned into pink color and the receipt at the amount of Rs. 5,000/- had not been denied by the accused. The

defense theory put forward by DW-1 was held to be a got up story and cannot be believed, After rejecting the defense theory put forward through

DW-1, the learned trial Judge ultimately convicted the Appellant and sentenced him as mentioned earlier.

I have beard Sri. S.G. Rajendra Reddy, learned Counsel for the Respondent-Lokayuktha and none appeared for the Appellant and there in no

representation.

Under the above circumstances, this Court in left with no other alternative than to dispose of the appeal on merits and in arriving at this

conclusion, this Court is fortified by the observations made by the Apex Court in the case of Bani Singh and ohters Vs. State of U.P., and the said

observations are as under:

It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is

the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if

both the Appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound

to adjourn the matter, It can dispose of the appeal after perusing the record and the judgment of the trial court. The plain language of Sections

385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter, On the contrary, the Code envisages disposal of the appeal

on merits after perusal and scrutiny of the record. The law dearly expects the Appellate Court to dispose of the appeal on merits, not merely by

perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying

itself that the reasoning and findings recorded by the trial court are consistent with the material on record.

Keeping in view the aforesaid position in law, I have perused the records of this case in the light of the arguments made by Sri. S.G. Rajendra

Reddy, learned Counsel for Respondent-Lokayuktha.

Submission of the learned Counsel for the Respondent-Lokayuktha is that the trial court committed no error in convicting the Appellant, as all

the prosecution witnesses have supported the case of the prosecution and in particular, PW-1 the complainant has stated clearly about the accused

having received the bribe amount of Rs. 5.000/- and keeping the said amount in the shirt pocket and the hand wash of the accused having turned

into pink color and PW-2 the shadow witness has fully supported the evidence of the complainant in all respects, It is then submitted that the

defense theory put forward is highly improbable, because the defense of the accused was that DW-1 being the auto driver used to give money to

the accused and on one occasion, DW-1 gave Rs. 20,000/- to the accused and it was this amount that PW-1 gave to the accused. The trial court

disbelieved this story as not inspiring confidence and the story put forward through DW-1 was a make believe story, Learned Counsel also

pointed out that even in the trap mahazar Ex.P4, the accused had admitted the receipt of amount from the complainant and no explanation was

forthcoming from the accused during the trap mahazar that the amount received by him was the loan that the complainant had received from the

accused. Therefore, looked from any angle, the view taken by the trial court is consistent with the evidence on record and the prosecution had

brought home the guilt of the accused beyond all reasonable doubt As such, conviction and sentence passed by the trial court does not call for any

interference.

In the light, of the aforesaid arguments put forward, I have also carefully gone through the evidence on record and the reasons assigned by the

learned trial Judge.

PW-1 the complainant has deposed clearly in his evidence that the accused accepted Rs. 5,000/- from PW-1 and this was in connection with

the accused doing an official favor to the complainant by giving more transport loads to the complainant. It is also in the evidence of PW-1 that the

amount was received by the accused from the right hand and it was counted and then the money was kept in the left side of his shirt pocket.

Thereafter, the Lokayuktha police came and caught the accused. Nothing in the cross-examination to disbelieve the testimony of PW-1.

PW-2 the shadow witness has fully corroborated the testimony of PW-1 in all respects including the accused demanding money from PW-1

and accepting the same and putting, it into his shirt pocket and band wash of the accused also turning into pink color.

Apart from the above evidence of these two material witnesses, the defense theory also falls to the ground, because DW-1 being the auto

driver does not say in his evidence that he has any document to show for having given Rs. 20,000/- to the accused. It is also very strange that

accused being in the post of Superintendent of KAVIKA would have taken ban from the auto driver frequently. Therefore, the learned trial Judge

was justified in disbelieving the defense theory put forward as having no basis.

Even looked from the angle of the evidence on record, the accused, when questioned by the I.O. during the trap has also admitted that he

received the amount from the complainant ass the complainant had asked for more work loads. Accused does not say before the I.O. in the

explanation that the amount that was received by him from PW-1 was the loan amount which accused had advanced to PW-1, Even in the

accused statement, no such hand loan was taken by the Appellant herein.

Thus, Looked from various angles, this is a case where it can be said without any hesitation that the prosecution had established the guilt of the

accused beyond all reasonable doubt, The trial court has left no starve untamed in arriving at the conclusion as to the guilt of the accused,

Therefore, the judgment of conviction does not call for any interference.

As far as sentence is concerned, learned Counsel for the Respondent-Lokayuktha submitted that the trial court had imposed 4 years R.I. for

the offence u/s 13(1)(d) r/w 13(2) of the F.C. Act and the Appellant must be in the age of 55 years as of now.

Considering the facts of this case and the incident said to have taken place in the year 2001 and more than 10 years having elapsed, in my

view, the sentence imposed in respect of conviction for the offence punishable u/s 13(1)(d) r/w 13(2) of the P.C. Act can be reduced to 2 years

R.I. from 4 years R.I. In all other aspects, the sentence imposed by the trial court in respect of the offence tinder Section 7 of the P.C. Act as well

as default sentence imposed for non payment of fine require no modification.

Appeal therefore is dismissed insofar as challenging conviction is concerned. However, in view of the sentence being reduced as mentioned

above, appeal also stands allowed in part to that extent. The Appellant shall forthwith surrender before the trial court to undergo the sentence

imposed and he is also entitled to set off in respect of the period already spent in custody. The trial court shall also take necessary steps to secure

the presence of the Appellant in this regard. A copy of this order shall be sent forthwith to the trial court.

Soon after the judgment was dictated, learned Counsel for the Appellant appeared and submitted that he also toe heard, Therefore, this Court

heard the learned Counsel for the Appellant and the submission put forward by him is that, no official work was pending with the accused as the

allotment of the work was done by the Manager and even prior to three months before lodging of the complaint, allotment had been made in favor

of the complainant and therefore, referring to the evidence of PW-4, it was submitted that there was no work pending with the Appellant to show

any official favor and as such, the essential ingredients of Section 7 of the P.C. Act is not established. With regard to sanction order, it was

submitted that sanction order is not proper and the authority has not gone through the material before giving sanction and hence, relying on the

decision of this Court reported in Ameer Jan Vs. State and Karnataka Lokayuktha, , it is submitted that the sanction order is also vitiated.

Therefore, submission made is that there was no occasion for the Appellant to demand the bribe amount from the complainant. Moreover, it is the

specific case of the accused that be had taken amount from DW-1, auto driver who was known to the accused for several years and the said auto

driver was having number of vehicles and could afford to give loan to the accused. On these submissions, learned Counsel sought for the judgment

of conviction be set aside.

The above submission is repelled by Sri. S.G. Rajendra Reddy, learned Counsel for the Respondent-Lokayuktha by inviting my attention to

the cross-examination of PW-4 to submit that though the ever all supervisory work was with the manager, the immediate assignment of loads to the

contractors was that of the accused. Therefore, accused had the duly to perform in the matter of assignment of loads and it was in this connection,

the accused demanded the bribe amount.

As far as the theory put forward regarding loan is concerned, learned Counsel argued that in the trap mahazar Ex. P4, no such defense is

forthcoming. Apart from the aforesaid submission made, learned Counsel also referred to Section 19 of the P.C. Act to contend that the sanction

order cannot be questioned on the ground of there being some irregularities etc., in it.

Apart from the aforesaid submissions made, it also has to be mention that even the trial court has observed at para-24 of its judgment that,

according to PW-4 himself, the power of indenting lorry among the contractor was with the accused and Ex. P11 reveals that the responsibility of

assignment or indenting the lorries was with the accused.

In the light of the aforesaid reasons, I do not see any case is made out by the learned Counsel for the Appellant for this Court to change the

view taken while dictating the judgment earlier.