M. Venkatesh vs State of Karnataka

Budihal R.B., J.—This is the appeal preferred by the appellant-accused No. 1 being aggrieved by the judgment of conviction and sentence dated 26.02.2013 passed by the Spl. Judge, Bangalore Urban District, Bangalore City in Spl. C.C. No. 104/2008.

The appellant has challenged the legality and correctness of the judgment of the trial Court as per the grounds mentioned at A to AH in the appeal memorandum.

The case of the prosecution as per the complaint exhibit P-2 is that Pw-2/Kathyayini lodged the complaint before the Superintendent of Police, Karnataka Lokayukta, Bangalore alleging that one Krishna, Junior Engineer, Langford Town, is demanding bribe to allow her to do the alteration work at Langford Town. Even though the complainant is well within the legal aspect which she had checked up with Vakil Legal Cell and Sriram Prop. Care Legal Cell. She has received the occupation certificate from Corporation for her apartment No. 3, Langford Town, Bangalore in the year 2001 itself. Other owners also have altered their flats and the official says that they have paid bribe of Rs. 60,000/- and have got it done. Hence, she also have to pay that amount to do the work inside her apartment failing which he will issue notice to stall the work. It is further stated that she was carrying Rs. 50,000/- for the above purpose of payment of '' bribe as demanded by the official. The same is being handed over to the authorities for further action. On the basis of the said complaint, case was registered by the Lokayukta Police for the offences punishable under Sections 7, 13(1)(d) read with Section13(2) Prevention of Corruption Act, 1998 in Lokayukta Police station Crime No. 49/2005.

Thereafter, as per the case of the prosecution, trap mahazar was prepared in the lokayukta office and then trap was laid and the amount smeared with the phenolphthalein powder was seized from the accused. After completing the investigation of the matter, the police have filed the charge sheet against the appellant-accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) Prevention of Corruption Act, 1998. Then, the trial Court after framing the charges against the accused for the said offences, conducted the trial and recorded the oral evidence of PWs-1 to 4 and prosecution also got marked documents Ex. P-1 to P-22 and the material objects at M.O. 1 to M.O. 12 and closed its case.

The accused was examined and his statement was recorded under Section 313 of Cr.P.C. by the trial Court. Then, after considering the materials placed on record, both oral and documentary, ultimately the Trial Court has convicted the accused for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 and imposed the sentence of one year and also a fine of Rs. 20,000/- and in default to pay the fine amount to undergo simple imprisonment for four months for the offence punishable under Section 7 of Prevention of Corruption Act. Further the appellant/accused was sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and to pay fine of Rs. 30,000/- and in default to undergo simple imprisonment for five months.

The appellant-accused has challenged the said judgment and order in this appeal.

Heard the arguments of the learned. Senior Counsel appearing for the appellant-accused and also the learned SPP appearing for the respondent-Lokayukta.

Learned Senior Counsel for the appellant has submitted that the appellant is not named in the complaint and name of the appellant is M. Venkatesh and not Krishna. He has further submitted that appellant has never demanded nor accepted the alleged bribe amount from the complainant. It is also submitted that the appellant had no work pending with him to show official favour to the complainant. Even in the FIR name of one Krishna is mentioned and not the name of appellant.

Learned Senior Counsel for the appellant has submitted that said Krishna is not at all seen. It is also submitted that when no work was pending with the appellant-accused the question of he showing the official favour does not arise at all. Learned Senior Counsel drew the attention of this Court to the judgment and order of the Trial Court and submitted that the findings recorded by the Trial Court are not at all in accordance with the oral and documentary evidence produced in the case. The material placed by the prosecution is not worth believable and cannot be relied upon by the Trial Court to base the conviction of the appellant/accused. He has submitted that the findings recorded by the Trial Court are perverse and prosecution had not at all proved its case beyond all reasonable doubt. He has submitted that the decisions relied upon by the learned counsel for respondent-Lokayukta has no bearing on this case. Hence, submitted to allow the appeal and to set-aside the judgment and order under appeal.

Per contra, the learned SPP has submitted that the evidence of PW-2 clearly shows that appellant/accused had demanded and accepted the bribe amount. He has submitted that the document Ex. P-10, explanation of accused, corroborates that the accused knew Krishna and since Krishna ran away, mahazar took place on the next day. It is also his submission that shadow witness has no animosity with the accused so as to falsely implicate the accused in the case. He has also submitted that in view of long lapse of time there may be some discrepancies in the evidence of the prosecution witnesses but they are minor discrepancies and will not go to the root of the matter. There is no proper explanation by the accused immediately after the trap proceedings. Hence, he has submitted that the trial Court has properly appreciated each and every aspect of the matter and rightly came to the conclusion to convict the accused. He has further submitted that there are no justifiable grounds to allow the appeal Hence, submitted to dismiss the appeal.

I have perused the oral evidence of PWs-1 to PW-4, documents Exhibit P-1 to P-22 and material objects M.O.-1 to M.O.-12. I have also perused the statement recorded under Section 313 Cr.P.C. under which accused has been examined with regards to incriminating circumstance put him by way of questionnaire and also perused the explanation as at Ex. P-10 said to have been given by appellant/accused.

Perusing the complaint averments as per Ex. P-2 so also the FIR marked as per Ex. P-17, the allegations are against one Krishna and so far as the appellant/accused is concerned, absolutely there are no allegations that he demanded the bribe amount of Rs. 60,000/-. There are also no averments in the complaint Ex. P-2 that said Krishna demanded the bribe amount of Rs. 60,000/- stating that it is as per the say of the appellant/accused Venkatesh. So the complaint averments are to the effect that the demand is by Krishna.

In the document Ex. P-4, which is entrustment mahazar dated 26.11.2005, there is a specific mention that when the complainant started the alteration work of her apartment house No. 3, Langford Town, the Corporation Engineer Krishna stopped the work and took the equipments used for the said alteration. Even in the entrustment mahazar there is no averment that said Krishna demanded bribe of Rs. 60,000/- at the instance and as per the say of the appellant/accused i.e., Venkatesh.

As per the oral evidence of prosecution witnesses, the relevant portions in the evidence are as under:

PW-2/Kathyayini is the complainant. She deposed in her examination in chief that a week earlier to 26.11.2005 she was engaged an alteration work to their house at Langford Town. Accused prevented her from going ahead with the construction work, for which she said that it was not outside and she was doing alteration work inside their house to generate the funds as her husband was ailing from brain cancer. So, this evidence of PW-2 is totally contrary to the averments made in the complaint. As I have already observed above and at the cost of repetition that, in the complaint there is no allegation that; it is accused/Venkatesh, who came and stopped her proceeding with the further alteration work, and demanded the bribe of Rs. 60,000/- and took away the equipments used for alteration work. 15. PW-2 has further deposed that now she cannot identify the accused and she has demanded Rs. 60,000/- bribe for going ahead with the construction work. But she has further deposed that the amount was demanded by one person said to be Krishna. So by this evidence also she has made it very clear that the person demanded the bribe amount is one Krishna.

In her further examination in chief, no doubt she has deposed about the entrustment mahazar proceedings and she producing, Rs. 50,000/-, the amount to be payable to the accused. Thereafter they left lokayukta office in a jeep and she was accompanied by the staff. They went and stopped near a place at Shanthinagar BBMP office. She and another official were asked to go inside the office. When they entered the office accused was not there and after five minutes he came and asked her, whether she brought the money, and she said yes. She has also said that it was Rs. 50,000/- and not Rs. 60,000/-. Then the accused said to give the amount of Rs. 50,000/- only. Thereafter, she took out the amount of Rs. 50,000/- from her bag and when she was about to give, by that time accused opened a file and asked her to keep the amount in the file. She asked him to count the money, for which, he said it was not necessary.

Thereafter, she came outside and flashed the signals. Then, the officials came inside the office. She showed them the accused and they searched the amount. The officials washed the hands of the accused in a solution and there was no change of colour. The solutions were seized and sealed in a bottle, Ex. M.O. 1 and M.O. 2 (right hand wash). Both the hands of the accused were washed. After washing the left hand also there was no change in colour. The solution was seized and sealed in a bottle as per Ex. M.O.-3.

She has further deposed that since the money could not be traced after search and the person who was with the accused is not seen in the office, mostly it was taken by another person, who was there, who was not seen subsequently. Thereafter, the lokayukta officials were questioned the accused, for which, he said that he does not know anything about the money. Then, the mahazar was drawn as per Ex. P-8.

It is the further evidence of PW-2 that on the next day she went to lokayukta office and telephoned the person, who was missed from the office of the accused and there was no reply from his side. She telephoned him on the basis of earlier received calls. Thereafter, the said person rang up to the lokayukta office and told that he would keep the money in the drawer and Lokayukta Police would get it.

Lokayukta Police, P.W.-2 herself and another witness went to the office of the accused and the amount was available in the table drawer and it was recovered and the said amount was the amount which was received from her.

She was treated as hostile and the Public Prosecutor with the permission of the Court, cross-examined her. She deposed that it is true that the accused gave explanation as per Ex. P-10 and she denied the contents. She has further deposed as true that mahazar was prepared on the next day i.e., 27.11.2005 as per Ex. P-16 and her signature is at Ex. P-16A. In her cross-examination she deposed that she spoke to Krishna on 26.11.2005 and he asked the money. So, PW-2 in her oral evidence also deposed that Krishna asked the money.

PW-3/D. Bhaskar, who is the shadow witness as per the case of the prosecution. In his examination in chief has deposed that, on 26.11.2005 he was asked to come to the lokayukta office and it was 12.45 p.m. when he was deputed. When he went to the office of lokayukta one police inspector by name Khan was there, another witness was also present and the complainant of this case was also present. He was told that she has given a complaint and she had amount of Rs. 50,000/-. The complaint was in respect of demand of bribe for facilitating the complainant to go ahead with the construction. This witness also deposed in detail about the complainant producing Rs. 50,000/- and conducting entrustment mahazar as per Ex. P-4.

PW-3 has further deposed that thereafter they went to the office of the accused, which is at Shanthinagar BBMP office. Complainant telephoned to Krishna and his phone was not reachable. Thereafter, Krishna was available in telephone and he said that he would get the accused to the office by 4.00 p.m. and 4.45 p.m. at that time the vehicle was stopped at a distance of 100-200 meters from the office. Thereafter, Krishna arrived to the office, complainant identified him. Then, he and complainant went to the office of the accused. When they went there, Krishna was present and accused was also present. Krishna introduced the complainant to the accused. Complainant was offered to sit. Complainant raised about the money matter that was demanded by the accused and the accused asked that whether it was Rs. 50,000/- or Rs. 60,000/- and the complainant said that the amount was Rs. 50,000/- as demanded was brought. The complainant was asked to keep the amount beneath the file and assured the complainant that she would not face any problems and the accused further told that the equipments were kept in scooter dickey and would be returned back.

Then, PW-3 and complainant stepped out and the Lokayukta Police came into the office as the complainant gave signal by wiping her face. Lokayukta police asked who was the person, then, they showed the accused and told the Lokayukta Police that the amount was beneath the file and when they searched amount was not there. Accused told the Lokayukta Police that amount was taken away by Krishna and they started searching Krishna. Later they were told that Krishna jumped the compound and went away. Krishna was the person, who was assisting the accused and it was revealed by the accused. He also deposed that they prepared the solution, then the accused was asked to dip his finger in it and there was no change of colour. The solution was seized and sealed in a bottle. Mahazar was drawn as per Ex. P-8. He has also deposed that the accused gave his report as per Ex. P-10.

In his cross examination, when P.W-3 was asked that how many mahazars would have been conducted, his response is 6 or 7. When he was asked that accused did not asked whether the complainant had brought Rs. 50,000/- or Rs. 60,000/- as told by him in the chief examination, his response is that he was little-bit confused and the accused said it was Rs. 50,000/. In his further cross examination he admitted as true that accused did not tell them that Krishna had carried the money. He has not stated before the Police regarding the complainant talking about money with the accused.

PW-4, who is the Investigating Officer has deposed in his examination in chief about all the details regarding entrustment mahazar and also trap mahazar. He has deposed that he instructed the complainant to go along with the witness CW-2 to the office of the accused and to talk about the case and to pay the amount to the accused, in case of demand and flash the signals by wiping the face. He has further deposed that at about 4.45 p.m. they received the signal by the complainant wiping her face with hand kerchief. Thereafter, they went inside the office of the accused. Then, the complainant showed the accused and told about the matter in respect of bribe. He asked his constables to prepare the sodium carbonate solution, a sample was taken out and preserved in the bottle as per M.O.-1. He effected the wash of the hand of accused and there was no change in colour. The washed solution was seized and sealed in a bottle as per Ex. M.O.-2. The left hand wash is as per M.O.-3, there was also no change in colour.

PW-4 has further deposed that on 27.11.2005 Krishna himself telephoned to their office at about 12.45 p.m. and informed and ensured that he would keep the money in the same table drawer and asked them to go and collect it and also told not to make any efforts to search him.

In his cross examination PW-4 has denied the suggestion that complainant never identified the accused. When it is suggested that no case was pending with the accused, his response is, no proceedings were pending before the accused, but the accused did not allowed the complainant to go ahead with the alteration work. He has admitted as true that they have not wiped the place from cotton where currency notes were obtained.

The entrustment mahazar, trap mahazar details shows that the Investigating Officer after completing the entrustment mahazar instructed the complainant and the shadow witness PW-3 to go to the office of the accused and to pay the bribe money on demand.

The first and the foremost question that will arise for consideration at that stage is who told the Investigating Officer that the accused demanded the bribe amount from the complainant and it is the accused, who prevented or obstructed the complainant from proceeding with the alteration work. So this shows that the story of the prosecution as against the accused is totally baseless.

Materials, as per oral evidence of PWs-2, 3 and 4 clearly shows that when hand wash of the accused i.e., left hand as well as right hand, was taken in two separate bowls, there was no change in colour.

It is no doubt true, perusing the FSL report marked as per Ex. P-20 in the opinion column in page No. 3 of the said report, it is mentioned that presence of phenolphthalein is detected in the right hand finger wash of AGO and the same is not detected in the left hand finger wash. The learned Spl. Judge has relied upon the said Ex. P-20 and went on discussing that this accused received the bribe amount and because of that reason the right hand wash was turned to pink colour and tagged this accused with the commission of the alleged offence. But the trial Judge has totally ignored the oral and direct evidence of PWs-2 to 4, who have clearly stated that, there was no change in the colour of the solution.

Perusing the oral as well as documentary evidence, the case of the prosecution is inconsistent and not reliable one. Even the oral evidence of PWs-2 to 4 shows that when the complainant wanted to give the amount to the accused, the accused told her to keep it in the file and accordingly she kept the amount in the file. There is no positive evidence from the mouth of PWs-2 and 3 that accused took the bribe amount into his hands and counted the same in their presence.

On the contrary, the evidence before the Court is that the complainant kept the amount-in the file as asked by the accused and when she asked the accused specifically to count the notes, the accused said in reply that it is not necessary. This also shows that accused has not handled the tainted currency notes. But the further evidence shows that when the Investigating Officer/PW-4 enters into the office of the accused, immediately after the signal, and when they wanted to seize the amount, the amount was not there. It is no doubt true, the witnesses deposed that it is accused, who told the raiding party that the amount is taken away by Krishna. But PW-3, the shadow witness, during his cross-examination clearly deposed that accused did not tell him that Krishna had carried the money. So it also falsify the case of the prosecution that, accused told before them that. Krishna carried the bribe amount.

Therefore, only on the basis of FSL report as per Ex. P-20 stating that in the right hand wash of the accused the solution turned into pink colour, the entire other materials produced by the prosecution i.e., the oral evidence of PWs-2 to 4 cannot be ignored by the Court while appreciating the case of the prosecution.

The Spl. Judge discussed much about the explanation of the accused said to have been given as per P-10. I have perused the said document Ex. P-10. The last three hand written lines in the said document is not in the same fashion with regards to the other writings in the said Ex. P-10. Even the letters in the last three lines are very smaller and written closely.

Perusing Ex. P-10, it shows that it was closed initially as the document writing was ended and it is mentioned as "this much only" (ishte swami). The said words are scored and thereafter again three lines were written in the said document.

Perusing the statement of accused recorded under Section 313 of Cr.P.C., while answering question No. 49, the stand taken by the accused is that, the said document Ex. P-10 got executed through him forcibly. After his examination under Section 313 of Cr.P.C. was over, he has also filed one statement under Section 313 of Cr.P.C. wherein also he has clearly mentioned that the document Ex. P-10 was got written, as per the dictation of police.

Perusing the writings in Ex. P-10 and also the defence of accused it probablises the defence of the accused. The prosecution has not placed any satisfactory and cogent evidence to show that document Ex. P-10 was executed by the accused voluntarily and by his free will. Therefore, the reasoning adopted by the trial Court with regards to document Ex. P-10 without noticing all these things and it clearly shows that the trial Court had not taken into consideration all these materials placed on record while appreciating the document Ex. P-10.

When the other evidence of which reference has been made and discussed above which shows that the person who demanded and also said to have been received the bribe amount is all together a different person by name one Krishna.

As per the case of the prosecution, the question of accused giving the explanation as per Ex. P-10 also appears to be most unnatural and improbable.

Looking to all these materials on record i.e., both oral and documentary, the trial Court has not correctly appreciated the materials and wrongly held that prosecution proved its case beyond all reasonable doubt and wrongly convicted the appellant/accused.

Perusing the entire materials on record, it raises reasonable doubt as to the accused committing the alleged offences. Hence, the benefit of doubt has to go the accused person.

Accordingly, the appeal is allowed and the judgment and order dated 26.03.2013 passed by the trial Court in Spl. C.C. No. 104/2008 is hereby set-aside. The appellant/accused is acquitted of the charges leveled against him and is set at liberty forthwith, if he is not required in any other case.

In view of the disposal of the main appeal, I.A. No. 2/2013 does not survive for consideration. Accordingly, it is disposed of.