Lalsab vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned Special Public Prosecutor. These appeals are considered together and disposed of by this common judgment, as the accused/appellants are the accused in the same case.

It was the case of the prosecution that, the complainant one Ningappa Siddappa Nidagundi was a permanent resident of Kappalguddi village of Raibag taluk. He had constructed a house at Kappalguddi village panchayat jurisdiction and it was an unauthorized construction. Since he was required to obtain a loan, he had made an application to the appellant in criminal appeal No. 2745/2010, who was arraigned as accused No. 1 and was the Secretary of the Gram Panchayat, Kappalguddi village, seeking that, his name be entered in respect of the house site, which had been occupied by him and issue an extract of the property register reflecting his name against the said property. The complainant was said to have approached the accused No. 1 many times, requesting him to do the needful. On 21.08.2006 (the year is incorrectly mentioned in the course of the judgment of the Court below, through out, as 2005), when the complainant had similarly approached accused No. 1, repeating his request and enquired about the fate of his application, accused No. 1 was said to have demanded an illegal gratification of Rs. 1000/- to execute the application. In pursuance of the said demand made, the complainant, who was not inclined to pay any such bribe, had lodged a complaint in the Lokayukta Police Station, on 25.08.2006. When the complainant approached the accused again, on the basis of the complaint, a trap was laid to apprehend the accused red handed, while receiving such illegal gratification. Therefore, after elaborate preparations, a successful trap was laid. It was alleged that, Rs. 1,000/- was to be distributed as between accused No. 1 in a sum of Rs. 500/- and accused Nos. 2 and 3, in a sum of Rs. 100/- each and a further sum of Rs. 300/- was meant for a clerk, who was involved in the process of entering the name of the complainant in the property register. Accordingly, the money was ultimately recovered from the possession of accused Nos. 2 and 3.

It was alleged by the prosecution that, accused No. 1, who had demanded and accepted the bribe, at the time of the trap, had left the scene before the police party could enter and carry out the process of washing the hands of the accused with sodium carbonate solution, to further establish that, he had indeed handled the tainted money. However, it was accused Nos. 2 and 3, whose hands were washed with sodium carbonate solution and it was established that, they had handled the currency notes, which were in their possession, namely a sum of Rs. 600/- was found in the hands of accused No. 2 and Rs. 300/- was found in the hands of accused No. 3, which according to the prosecution, was already received by accused No. 1 in a sum of Rs. 500/- and the same had been handed over to accused No. 2 by accused No. 1. The accused No. 1 had quickly left the place informing accused Nos. 2 and 3 that, he was proceeding to the house site of the complainant, to inspect the premises and since he left immediately, his hands could not be treated with sodium carbonate solution to establish that, he had also handled the currency notes. However, it was the statement of accused No. 2 to the effect that, a sum of Rs. 500/- was handed over to him by accused No. 1 for safe keeping and that he should return the money later.

It is on that basis, that a case had been registered against all the accused for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ''the P.C. Act'', for brevity).

The appellants having been charge sheeted and later, the charges having been framed, the statements of the accused were recorded u/s 313 of the Code of Criminal Procedure, 1973 and after the accused pleaded not guilty and claimed to be tried, the prosecution had examined 7 witnesses and marked 27 documents, apart from 19 material objects. It is thereafter, after hearing the parties, that the trial Court had framed the following points for consideration:

i. Whether prosecution proves beyond all reasonable doubt that the accused No. 1 being a public servant working as Secretary of Grama Panchayat, Kappalguddi village has demanded an illegal gratification of Rs. 1,000/- from the complain ant for entering the name of complainant in the property register and for issuance of house property extract on his application dated 25.07.2005 and in pursuance of the same on 25.08.2005 in the office of Kappalguddi Gram Panchayat at 1.05 pm, the accuse No. 1 demanded bribe of Rs. 1000/- from the complainant and accepted Rs. 500/- for himself and Rs. 100/- each was paid to accused No. 2 and 3 at the instance of accused No. 1 and accused No. 2 and 3 received the same having knowledge of the same and further accused No. 1 handed over his share of bribe amount to accused No. 2 assuring him of collecting it in the evening and thereby all the accused No. 1 to 3 have received Rs. 500/-, Rs. 100/- and Rs. 100/- each respectively from the complainant as a gratification other than legal remuneration as a motive or reward for doing an official act of issuance of house property extract in exercise of the official function and thereby committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988?

ii Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, accused No. 1 being the Secretary and accused No. 2 and 3 being the Peons in the Grama Panchayat office at Kappalguddi village abused their position as Public Servant by illegally demanding bribe and accepting bribe amount of Rs. 500/-, Rs. 100/- and Rs. 100/- each respectively from as a gratification other than legal remuneration as a motive or reward for doing for the aforesaid work and obtained pecuniary advantage and thereby committed an offence of Criminal Misconduct and thereby committed an offence punishable u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act?

iii. What Order?

The Court below held the same in the affirmative and convicted the accused. It is that, which is under challenge in these appeals.

Insofar as Criminal Appeal No. 2745/2010, filed by accused No. 1 is concerned, the learned Counsel for the appellant would contend that, it is evident, there was no material on record to indicate that, the said appellant had demanded and received the amount by producing any material evidence. In that, it is not established that the appellant had handled the tainted currency notes. As there was no physical proof of the same having been recovered from his possession, or the fact that, it was handled by him. In that, there was no phenolphthalein test carried out to establish that, he had anything to do with the currency notes. The same have been recovered admittedly from the possession of accused No. 2. Merely on the basis of the statement made by accused No. 2 to the effect that, it had been handed over to him by accused No. 1, the prosecution cannot allege that, the case had been proved beyond all reasonable doubt. Admittedly, the appellant was not even on the scene, when the police carried out the trap. It is on the basis of the allegation made by the complainant that, there was a demand and acceptance by the appellant, that the prosecution seeks to urge the case, while seeking to place reliance on the bald statement of the witnesses. That by itself, would not establish that the appellant had received any such bribe amount.

Secondly, it is pointed out that, the site in question was situated in land, which belongs to the panchayat. There was no transfer of such land in favour of the complainant. In which event, it is impermissible for the land belonging to the panchayat to be shown in the name of the complainant. The very allegation comes in the face of the circumstance, that the complainant carried a grudge against the appellant, in that he had deposed as a witness in a criminal case lodged against the complainant earlier and it is in order to wreak vengeance against the appellant, that a false complaint had been lodged. In any event, there is no material evidence, on the basis of which, it could be said, beyond all reasonable doubt, that there was a demand and acceptance of bribe to make out offences punishable under Sections 7, 13(1)(d) and Section 13(2) of the P.C. Act, and that, there was any official favour, which could be extended by the appellant in respect of the property, which belonged to the panchayat.

Further, unless there was a resolution by the panchayat, the question of carrying out or making any such entry in the property register is impermissible. Since the complainant himself was familiar with the procedure, that was to be followed in this regard, it was untenable for the prosecution, to seek to make out a case on these lines. Hence, the Counsel would submit that, the conviction by the Court below, merely on the bald statement of the witnesses, without there being any material evidence as to possession of the bribe amount or the demand and acceptance of the same, is unsustainable and it cannot be said that the prosecution had established its case. Hence, the learned Counsel seeks acquittal of the accused.

Though the learned Special Public Prosecutor would seek to justify the findings insofar as accused No. 1 is concerned, on a plain examination of the record, it cannot be said that, the prosecution had made out any case, whatsoever, as admittedly there was no material evidence, except the statements of witnesses to claim that, there was a demand and acceptance of bribe. No money was recovered from the appellant and mere statement of the complainant, the shadow witness or even accused No. 2, to the effect that, such amount had been handed over to him after accused No. 1 had received it from the complainant cannot, on the face of it, be accepted, without corroboration by other material evidence as was sought to be established, insofar as accused Nos. 2 and 3 are concerned, the standard of degree of proof cannot be different for this accused, when the allegations are common. In the absence of material evidence as is sought to be put forth insofar as accused Nos. 2 and 3 are concerned, the allegation against accused No. 1 cannot be sustained.

Insofar as accused Nos. 2 and 3, who are appellants in Criminal Appeal No. 2748/2010 are concerned, it is an admitted circumstance that, accused Nos. 2 and 3 were peons employed on a temporary basis by the Panchayat. They have been found in possession of Rs. 600/- and Rs. 100/- respectively. It was the defence of the said appellants that, they were mere peons and not in a position to extend any official favour on receiving any illegal gratification. Secondly, it was contended by accused No. 2 that, he had received certain amount of money from accused No. 1 in a sum of Rs. 500/- and a sum of Rs. 100/-, without the knowledge that it was meant to be a bribe amount. Rs. 100/- was received by him in good faith and without the knowledge that it was a bribe and Rs. 500/- was received by him from accused No. 1 for safe keeping, as he was informed that, he has to keep the same with him till he asked for it. Hence the fact that, accused No. 2 was found in possession of the money, which to his knowledge was not accepted as bribe amount, it could not be said that the prosecution had established its case of an offence punishable u/s 7 of the P.C. Act.

The learned Counsel for the appellants would place reliance on a decision of the Apex Court in the case of K. Subba Reddy Vs. State of Andhra Pradesh, , wherein, in identical circumstances, when the money was recovered from one of the accused and when it was shown that, he had received it without the knowledge that, it was meant to be bribe amount and when there could be no occasion for demand and acceptance of such bribe, if the official work to be extended in consideration of the same was not in the hands of such person, then it could not be said that, it was commission of offence punishable u/s 7 of the P.C. Act. Hence the learned Counsel would seek to contend that, the appellants were innocent by standers, who have been unnecessarily implicated with serious offences, when in innocence they had received moneys given to them by the complainant, who was their superior earlier. Therefore, seeks acquittal of the accused.

On the other hand, the learned Special Public Prosecutor would contend that, insofar as accused Nos. 2 and 3 are concerned, it is admitted by accused No. 2 that, the bribe amount was handed over by accused No. 1 to him for safe keeping. It cannot be said that, they were innocent of the amounts being handed over as bribe. Since the present accused Nos. 2 and 3 have their role to play in ensuring quick movement of files, it is apparent that, they had been given their share of the bribe amount and mere possession of such money is sufficient to bring home the charge for an offence punishable u/s 7 of the P.C. Act. There is no need for the prosecution to further establish, that the recipient was not in a position to extend any official favour. The fact that the bribe amount of a sum of Rs. 1,000/- was to be shared between accused Nos. 1, 2 and 3 in a sum of Rs. 500/- and Rs. 100/- each insofar as accused Nos. 2 and 3 are concerned and a further a sum of Rs. 300/- was to be paid to a clerk, who had safely refused to receive the same, it could not be said to be the imagination of the complainant. The actual recovery of moneys and the fact that, the phenolphthalein test had proved positive insofar as accused Nos. 2 and 3 having handled the currency notes, is sufficient to establish the case beyond all reasonable doubt. Therefore, seeks affirmation of the judgment of the trial Court and would submit that, there is no warrant for interference. Given the above facts and circumstances, there is no evidence to establish that, the complainant had handed over Rs. 500/- to accused No. 2. It is admitted case of both the prosecution as well as accused No. 2 himself that, a sum of Rs. 500/- had been handed over to him by accused No. 1 for safe keeping. Even if these currency notes along with a sum of Rs. 100/- each are recovered from accused Nos. 2 and 3 and they are found to have tested positive in the phenolphthalein test, it would yet be necessary for the prosecution to establish that, these appellants were in a position to extend an official favour in consideration of the receipt of illegal gratification. There is no such presumption that arises. They were lowly peons, who were not in a position to extend any such official favour. Collusion between the accused Nos. 1, 2 and 3 and there being common intention to extend any such official favour in favour of the complainant, is not forthcoming from the record, except the statement of the witnesses. Insofar as the actual recovery of the currency notes from accused Nos. 2 and 3 are concerned, the same, if shown to be without knowledge that the same was illegal gratification, it could not be said that, the presumption u/s 20 of the P.C. Act would arise. As held by the Apex Court in the Case of K. Subba Reddy (supra), if there is a semblance of probability, that the concerned would not have had any knowledge that, it was part of the bribe amount, that was paid in the course of demand and acceptance made by other accused, it could not be attributed and extended to the accused, who may have had no knowledge that, it was paid as bribe. The money received as goodwill, though there is a denial that, the complainant was a superior, under whom accused Nos. 2 and 3 had earlier worked, even if not tenable, as sought to be vehemently disputed by the learned Special Public Prosecutor, the money having been paid in good faith by the person, who had some work to be done in the office of the village panchayat and if such money had been received by virtue of sheer greed by the accused Nos. 2 and 3, it can possibly be said that, they had received such money without knowledge that, it was bribe amount. Therefore, the benefit of doubt ought to be extended in favour of the said appellants.

Consequently, the appeals are allowed. The judgment dated 09.10.2010 in Special Case No. 23/2007 passed by the IV Additional District Judge and Special Judge, insofar as accused Nos. 1, 2 and 3 are concerned, is set aside. The appellants be acquitted. The fine amount, if any paid, is to be refunded.

The bail bonds executed by the appellants shall stand cancelled.