Shivappa Muddappa Karjagi vs State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 13.09.2013 passed by the learned Spl. Judge, Haven in Spl. (Lok) Case No. 5/2007 is called in question in this appeal. By the judgment and order of conviction the appellant-accused has been convicted for the offences punishable under Section 7 , 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (hereinafter referred to as ''Act'' for brevity). The accused-appellant challenged the legality and correctness of the judgment of the trial Court on the grounds as mentioned in the appeal memorandum.

The case of the prosecution as per the complaint averments are that, P.W. 2-one Hussainsab son of Saleembasha Humnabad, resident of Aladakatti filed complaint before the Lokayuktha Police on 29.05.2007 as per Ex. P.20. He has alleged that he is residing in the address mentioned in the complaint and leading his life by doing agriculture. In connection with the land in the name of his grandfather Chandsab there were partition proceedings between himself and his uncle Davalsab. In that connection he was in need of the death extract of his grandfather-Chandsab. Complainant filed application before the Tahasildar office at Haven. The office of the Tahasildar gave endorsement that the death extract is not available. Then the complainant filed criminal miscellaneous case before the J.M.F.C. Court arraying the Tahasildar as respondent seeking direction to the Tahasildar for issuing death extract of his grandfather.

On 25.04.2007 case was disposed of directing the Tahasildar to issue death extract of grandfather of the complainant. Then the Village Accountant and the Revenue Inspector came to the village of the complainant for enquiry in respect of death of grandfather of complainant and complainant met with them and talked to them. At that time the Revenue Inspector Shivappa Muddappa Karjagi, the accused-appellant herein told the complainant to see him in his office. The complainant waited nearly for 20 days with the hope that the death extract will be issued. But, even then it was not issued. Then on 21.05.2007 the complainant went to the office of the Tahasildar and gave an application along with the Court order. The Advocate appearing for the complainant also called the complainant and told him that the death extract of his grandfather is urgently required. Then he went to the office of the Revenue Inspector, Sri S.M. Karjagi at Haven and told him that the death extract is urgently required so as to produce it before the Court. For that the Revenue Inspector asked the complainant to bring Rs. 500/- and then he will submit his report before the Tahasildar.

As the Revenue Inspector demanded bribe amount of Rs. 500/- for submitting the report and he was not interested to give bribe he went to the office of Lokayuktha and lodged complaint requesting to take action against the Revenue Inspector. On the basis of the said complaint a case has been registered against the appellant-accused for the above said offences. After completion of the investigation the I.O. filed the charge sheet against the accused for the above said offences. In support of its case the prosecution in all examined eight witnesses as P.W. 1 to P.W. 8 and got marked documents as per Ex. P.1 to Ex. P.38 and material objects as per M.O. 1 to M.O. 8. On behalf of the defence, one witness was examined as D.W. 1 and documents as per Ex. D.1 to Ex. D.6 are got marked. After considering the merits of the case ultimately the trial Court convicted the accused for the offences above mentioned and hence the appellant is before this Court.

I have heard arguments of the learned counsel appearing for the accused and also the learned standing counsel for the respondent Lokayuktha.

Learned counsel for the appellant during the course of his arguments submitted that the complainant made false allegations against the appellant that in connection with the death extract he demanded bribe amount of Rs. 500/-. Learned counsel submitted that when there is an order issuing direction to the Tahasildar in the Criminal Miscellaneous case to issue death extract, the question of the Revenue Inspector demanding bribe amount of Rs. 500/- does not arise at all. He further submitted that the Tahasildar asked the Revenue Inspector for submitting the report for the purpose of filing his objection statement in the said criminal miscellaneous case. Therefore the complainant going again to the Revenue Inspector on the dates as mentioned in the complaint requesting him to submit the report does not arise at all.

Counsel also submitted that sanction issued in this case is without application of mind by the Sanctioning Authority. He also submitted that the Criminal Miscellaneous Proceedings in connection with the direction issued to the Tahasildar by the Court and the photograph said to have taken during the trap mahazar proceedings, admittedly were not placed before the Sanctioning Authority. Hence, learned counsel submitted that if the proceedings in the Criminal Miscellaneous and the order passed by the Court issuing direction to the Tahasildar were produced before the Sanctioning Authority, the Sanctioning Authority would not have issued sanction order. He submitted that there is no satisfactory and cogent evidence placed by the prosecution to prove that the appellant-accused demanded and accepted the bribe amount of Rs. 500/- from the complainant.

It is also submitted that, looking to the evidence of the complainant as well as the shadow witness-P.W. 3 they are totally contradictory with each other and there is no consistency in the evidence of both the witnesses. He further submitted that P.W. 1 and 2 have deposed in their evidence that after the trap proceedings are over they were asked to come to Lokayuktha office on the next day. Accordingly, they went and signed the trap mahazar and hence the counsel submitted that this itself show that no such trap proceedings were taken place as contended by the prosecution. Counsel also submitted that the complainant himself has stated in his evidence that he does not know contents of the complaint. Hence, he submitted that at the instance of the Lokayuktha Police, a false case has been registered against the appellant-accused. Hence, learned counsel submitted that the I.O. in this case has not conducted investigation impartially and it has come on record that at the place where the alleged amount said to have been given to the to the appellant-accused, there are more number of public gathered at the said place. Therefore, it is very difficult to believe the case of the prosecution that in the presence of such public the appellant-accused received the bribe amount.

Learned counsel also drawn attention of this Court to the relevant portion of the evidence of prosecution witnesses and the documents. Lastly he submitted that the judgment and order of conviction passed by the trial Court is not in accordance with the evidence produced in the case, it is illegal and hence submitted to allow the appeal and set aside the judgment and order of conviction and to acquit the accused. In support of his contention learned counsel for the appellant-accused relied upon the following decisions.

"1) Ameer Jan Vs. State and Karnataka Lokayuktha,

2) B.N. Swamy Vs. State of Karnataka

3) Panalal Damodar Rathi Vs. State of Maharashtra,

4) State of Kerala and Another Vs. C.P. Rao,

5) State of Karnataka Vs. K.T. Hanumanthaiah,

6) D. Rajendran Vs. State,

7) Smt. Mamtaz Begum Vs. State of Karnataka,

8) Judgment of High Court of Karnataka dated 19.02.2015 rendered in Criminal Appeal No. 764/2009 c/w 284/2010;

9) State Vs. K.M. Gangadhar, "

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Per contra learned Standing Counsel for the respondent-Lokayuktha submitted that the Revenue Inspector demanded the bribe amount not for issuance of the death extract of the grandfather of the complainant but it was demanded to make enquiry about the death of grandfather of the complainant. But to submit his report to the Tahasildar for the purpose of issuance of death extract.

Learned counsel further submitted that the documents at Ex. P.1 and Ex. P.2, i.e., entrustment mahazar and the trap mahazar so also the evidence of P.Ws. 1 to 3 and the I.O. clearly goes to show that prosecution proved its case of demand and acceptance of the bribe amount by the appellant-accused. Learned counsel submitted that the shadow witness consistently deposed that in his presence the accused demanded bribe amount from the complainant when the complainant asked the accused for issue of the death extract.

Learned counsel submitted that the FSL report also goes to show that the hand wash of the accused turned to pink colour and the FSL report goes to show presence of phenolphthalein powder. Hence, she submitted, if the accused person had not at all received the bribe amount, the hand wash would not have turned to pink colour. It is also her submission that after receipt of the amount from the complainant, accused kept the said amount in the diary, which he was having. Even the pages in the said diary were also washed through cotton by the I.O. and preserved and it was also sent to FSL and the report is positive. Hence, learned counsel submitted that this material also goes to show that the appellant-accused received the bribe amount.

Learned standing counsel further submitted that immediately after the trap proceedings the appellant-accused was asked to offer his explanation about the money that was recovered from his possession. The accused gave the explanation that when he was in a hurry to go to the meeting the complainant came and put the notes in his pocket, which explanation is not at all acceptable. The learned standing counsel submitted that if the appellant accused has not at all demanded the bribe amount then he could have very well rejected receipt of the said amount. Hence, she submitted that the conduct of the appellant-accused in receiving the amount itself goes to show that he has accepted the bribe amount from the complainant. The trial Court rightly appreciated entire materials and rightly convicted the appellant accused for the alleged offences. She also submitted that the prosecution proved its case beyond all reasonable doubt and there is no illegality committed by the trial Court. Hence, she submitted that there is no merit in the appeal and same is to be rejected.

Learned standing counsel appearing for the respondent-Lokayuktha in support of her contention relied upon the decision reported in Mukut Bihari and Another Vs. State of Rajasthan, .

I have perused the grounds in the appeal memorandum, oral and documentary evidence adduced by the prosecution before the trial Court and judgment and order of conviction passed by the trial court which is challenged in this appeal and also the decisions relied upon both sides.

The main allegation of the complainant against the appellant-accused that as he was in need of death extract of his grandfather he approached the Tahasildar office at Haven. The Tahasildar directed the Revenue Inspector that is the appellant herein to go to the village to conduct the inspection and then submit the report. It is his further allegation that for submitting the said report to the Tahasildar office the appellant-accused demanded and accepted bribe amount of Rs. 500/- from him. In view of this contention of the complainant let me examine the materials placed on record to ascertain whether any work of the complainant was pending with the appellant Revenue Inspector and to show his official favour to the complainant, whether he has demanded and accepted bribe amount of Rs. 500/-. It is no doubt true looking to the materials placed on record, it has come on record that when the complainant approached the office of the Tahasildar for issue of death extract of his grandfather in order to produce the same in a civil suit pending between himself and his uncle, the Tahasildar did not issued the said certificate. Then the complainant filed criminal miscellaneous proceedings before the Magistrate Court and in the said proceedings the same was allowed and direction was issued to the Tahasildar to issue the death extract of the grandfather of the complainant. Even after the said order was passed when the complainant approached the Tahasildar again, the Tahasildar told the complainant that he has directed the Revenue Inspector, i.e., the appellant herein, to submit his report and the said report is not yet received.

The materials placed on record show that again the complainant approached the appellant on 21.05.2007 to the Tahasildar office. At that time he was directed to approach the Revenue Inspector.

Looking to the complaint at Ex. P.20 the averments goes to show that on 25.04.2007 the Court directed the Tahasildar to issue death extract of the grandfather of the complainant. Again the complainant went to the Tahasildar office on 21.05.2007 in connection with the death extract and then he went to the office of the Revenue Inspector S.M. Kharjagi and asked him to issue the death extract immediately. At that time he demanded Rs. 500/-. The prosecution produced one document, i.e., Ex. P.29. This is the report submitted by the appellant S.M. Kharjagi to the office of the Tahasildar. This is dated 27.04.2007. This document is relied upon by the prosecution itself and it goes to show that the Revenue Inspector submitted the said report under Ex. P.29 one month earlier. The complainant going again to the Revenue Inspector and making request to submit report for issue of the death extract or for submitting his report to the Tahasildar office for issue of the said death extract does not arise. If this document is taken into consideration it demolishes the entire case of the prosecution. This is why because when on 27.04.2007 itself the appellant submitted his report to the office of the Tahasildar, then there is no question of again the Revenue Inspector telling the complainant even on 21.05.2007 to bring Rs. 500/- for submitting report to the office of the Tahasildar. This version of the complainant cannot be accepted at all.

Looking to the complaint averments it is the consistent case of the prosecution that the death extract is to be issued from the office of the Tahasildar and not by the appellant-accused. The competent person to issue the death extract is the Tahasildar. Even according to the prosecution case, in the Criminal Miscellaneous case a direction was issued by the Court as against the Tahasildar and not against the Revenue Inspector. But, looking to the oral evidence of prosecution witnesses, P.W. 2 who is the complainant in his examination-in-chief deposed that when he went to the Tahasildar office for the death extract, the Tahasildar told that he has not yet received the report from the Revenue Inspector. Hence, again he met the accused and at that time the accused demanded Rs. 500/- from him. As he was not interested to give the said bribe amount he went to the Lokayuktha office.

In his cross-examination he deposed that he has not given application in writing to the Tahasildar after the order of the Court for issue of death extract. But 25 days after the order of the Court, he went to the Tahasildar office and requested to issue the death extract. At that time the Tahasildar told he has already instructed the Revenue Inspector and the Village Accountant for spot inspection and there afterwards he will issue the said certificate. Ten days thereafter again he went to the Tahasildar office and asked about the same. The Tahasildar told that he has not yet received the report and when he came and met the accused at that time the accused demanded and told that if he give Rs. 500/- then he will submit his report.

Looking to the evidence of P.W. 3, who is the shadow witness, who is said to have gone along with the complainant on the date of trap. He deposed in the examination in chief itself at page No. 3 of his deposition that himself and the complainant after parking the bike went to the office of the Revenue Inspector and complainant asked the accused for issue of the death extract. At that time the accused demanded bribe amount and there afterwards the accused took the complainant on his motorcycle and went away and the shadow witness was standing there only.

The said witness further deposed that the Lokayuktha Police came to the place where he was standing and he told that the accused took the complainant on his motorcycle and went away. Then the Lokayuktha Police asked the shadow witness to board the jeep and took him again and brought and left him with the complainant asking him to be with the complainant himself. Then he further deposed that himself and the complainant went inside the new Tahasildar office and when searched the accused he was sitting in one room. At that time the complainant asked the accused for the death certificate and complainant gave amount to the accused and the accused kept it in the diary. Then he gave signal as per the pre-arrangement to the Lokayuktha Police. So this evidence of shadow witness goes to show that the complainant requested the accused to issue the death extract and at that time the accused demanded bribe amount of Rs. 500/-. But, as per the complaint averments the accused demanded bribe amount for submitting his report to the office of the Tahasildar. Therefore, there is no consistency in the evidence of shadow witness compared to the allegations made in the complaint.

As I have already observed above that the accused was not supposed to issue the death extract and he was not a competent person to issue the death extract. The work assigned to the accused was go to the spot, verify the things and to submit his report.

The Tahasildar has been examined in this case as P.W. 4. He has deposed in his examination in chief that Lokayuktha Police seized the documents in his presence. He verified those documents, they are the inward register at Ex. P.21 and the documents containing direction issued by the earlier Tahasildar to the accused to conduct spot inspection and to submit the report. Said document is at Ex. P.22. Summons issued by the Court to the Tahasildar to appear before the said Court is at Ex. P.23. The application filed by the complainant before the Court in Criminal Miscellaneous case is at Ex. P.24. The outward register of the Revenue Inspector office is at Ex. P.25. The Register of Births and Deaths maintained in the office of Tahasildar is at Ex. P.26. Inward register of the Revenue Inspector''s office is at Ex. P.27. The report submitted by the Revenue Inspector to the Tahasildar is at Ex. P.28 and report submitted after conducting the spot inspection as directed by the Tahasildar is at Ex. P.29. In the cross-examination the Tahasildar deposed and admitted as true that the Court issued direction by passing the order on 25.04.2007. He further submitted as true that once there is a direction from the Court and there afterwards they will not issue any order or direction for conducting any inspection in the matter.

If the evidence of the Tahasildar is taken into consideration and looking to the date of order passed by the Court in the Criminal Miscellaneous case directing the Tahasildar to issue death certificate of the grandfather of the complainant. The said order was dated 25.04.2007. So this material also probabalizes defence of the accused.

So far as Ex. P.29 is concerned when the said document is referred in the evidence of the Tahasildar there is no evidence of the Tahasildar that though the date is put as 27.04.2007 on Ex. P.29, but, in fact it was not produced before him. In the absence of such specific deposition by the Tahasildar a reasonable doubt arises about the case of the prosecution. If we look into the document at Ex. P.29 it clearly goes to show that one month earlier to the alleged date of demand of the bribe amount of Rs. 500/- for submitting the report, the appellant-accused well in advance submitted the report to the office of the Tahasildar. This material also falsifies the entire case of the prosecution alleged in the complaint.

Coming to the demand and acceptance of the bribe amount of Rs. 500/- is concerned, the prosecution wanted to rely upon the trap mahazar proceedings marked at Ex. P.2. In Ex. P.2 it is mentioned at page No. 2 that Hussainsab Humnabadi who was standing at the entrance gate of the Tahasildar office shown one person to the Police Inspector who was caught hold by Suresh Lamani and H.M. Chalavadi, that is the Revenue Inspector Kharjagi, the appellant herein, who received the amount and kept in the book which he was holding in the right hand.

The accused asked the complainant whether he has counted the money and the complainant told that it is Rs. 500/-. It is also mentioned that pancha No. 2 Vishwas Prahladrao Kulkarni also told that Revenue Inspector who was sitting at the place where the staff was sitting in the Tahasildar office demanded the amount from the complainant. He received it from his right hand and there afterwards kept it in the book along with papers. Subsequently, he changed the hand and held it in the left hand. It is true looking to the document Ex. P.33, FSL report wherein at the end of the said report in the opinion column it is mentioned that "presence of phenolphthalein is detected in both right and left hand wash of the AGO."

On perusing the oral evidence of P.W. 2 the complainant and P.W. 3 the shadow witness who are competent to speak about the accused receiving the bribe amount through which hand and how he dealt with the amount, let me refer to their oral evidence.

P.W. 2 the complainant deposed in his examination in chief on page No. 3 of the deposition that the accused was in his office and he demanded the amount. At that time he took out the amount from his shirt pocket and gave it to him and the accused received the said amount through his right hand and kept it in the diary, which he was holding. Then he come outside and gave the prearranged signal by unfolding the sleeves of the shirt. Then the pancha who was with the complainant and the Lokayuktha Police immediately came and caught hold the accused and took him to one room in the office. Then the hand wash of accused was taken in the solution. So, looking to this evidence of the complainant on oath he has not deposed that when the accused received the bribe amount from him through his right hand he has also handled the said amount with his left hand.

Coming to the evidence of P.W. 3, the shadow witness, he also deposed in the examination-in-chief on page No. 3 of his deposition when they searched in the Tahasildar office the accused was sitting in one room. Then the complainant met with him and asked about the death extracts and he gave the amount to the accused and the accused after receiving the said amount kept it in the diary. After giving the said amount as per the instructions, the complainant gave prearranged signal to the Lokayuktha Police Inspector. Immediately they came to the said place and caught hold hands of the accused and he was taken to the nearby room and asked the accused where is the amount and told the accused to keep it on the table. Accordingly, the accused put the said amount on the table. Then the Inspector told to prepare the solution and taken the hand wash of the right hand solution and it turns to pink colour. The solution was preserved in the bottle and it was packed and sealed and thereafter the hand wash of the left hand was taken in the said solution, it also turns out pink colour.

Looking to the evidence of this shadow witness, firstly it is against the contents of Ex. P.2-trap mahazar. Because immediately after giving the prearranged signal and as per the evidence of P.W. 3, Lokayuktha Police came and caught hold the accused and then asked him where is the amount and to keep it on the table. Accordingly, the accused kept the amount on the table, then the hand wash was taken. So, this is contrary to the evidence of P.W. 2, the complainant that immediately after caught holding the accused firstly the hand wash was taken and then the accused was asked to produce the amount. Apart from that even in the evidence of P.W. 3 he has not specifically deposed on oath that after receiving the amount from the complainant he handled the amount with both the hands.

In the absence of such specific evidence mere production of the report of the FSL under Ex. P.33 to show that the hand wash of both the hands turns to pink colour and as per the laboratory report the hand wash was having the presence of phenolphthalein powder. Not only that, so far as Ex. P.2, trap mahazar is concerned, looking to the evidence of P.W. 1 and 2, they have stated in their evidence that when the proceedings were conducted in the Tahasildar office regarding the trap they have not deposed in their evidence that the trap mahazar was drawn and they put signatures on the trap mahazar-Ex. P.2 then and there only. On the contrary the evidence of P.W. 1 and 2 goes to show that they were asked to come to Lokayuktha Office on the next day. There the Lokayuktha Police made the writing and obtained the signatures of P.Ws. 1 and 2.

Looking to this evidence of P.Ws. 1 and 2 reasonable doubt arises in the mind of the Court whether really the proceedings have taken place on 29.05.2007 or not. Looking to the signatures of the complainant as well as P.W. 1 on Ex. P.2 it was on 29.05.2007 itself. But, looking to their oral evidence their signatures ought to have been on the next day, i.e., on 30.05.2007.

On perusing the materials placed on record about which I have already made reference above, as on the alleged date of incident or little earlier to the said date which dates are referred in the complaint-Ex. P.20 no work of the complainant was pending with the appellant-accused as he had submitted report one month earlier to the said date which is very clear with the document Ex. P.29. Therefore, the contention of the complainant and the other witnesses in this regard cannot be accepted as the said evidence is not worth believable or trustworthy, looking to the documentary evidence in the matter.

So far as the sanction is concerned, no doubt the prosecution produced sanction order under Ex. P.32 and the sanctioning authority is also examined. P.W. 6 is the said witness by name Panchakshari S. Vastrad who deposed in his evidence that on 31.08.2007, the A.D.G.P. Lokayuktha send a letter to him for issuing the sanction order for prosecution of the accused. Those documents are the complaint, FIR, entrustment mahazar, trap mahazar, statement of witnesses. He perused those documents and as there was a prima facie case he issued the sanction order dated 18.09.2007. It is at Ex. P.32 and his signature is at Ex. P.32(a).

In the cross-examination he deposed that at the end portion of the sanction order the staff of his department verified it and they put their signatures. The witnesses admitted the said suggestion as true. He admitted further suggestion as true that the said persons have verified the file. He admitted as true that in the sanction order he has not mentioned about the date of the order passed by the Court for issuance of the death extract. Admittedly, even according to P.W. 6 the proceedings in respect of the filing of the criminal miscellaneous petition and the Court issuing direction and there afterwards the Tahasildar issued direction to the Village Accountant and the Revenue Inspector to conduct spot inspection and to submit the report and about the document Ex. P.22 to Ex. P.29, those documents were not produced before the sanctioning authority.

Learned counsel for the appellant-accused justified in making his submission that had those documents also produced before the sanctioning authority he would not have issued the sanction order. Therefore, considering all these aspects of the matter they clearly goes to show that so far as the case of the prosecution that accused demanded and accepted bribe amount of Rs. 500/- from the complainant for submitting the report and thereby committed the alleged offences has not been established by the prosecution with cogent and worth believable materials.

On perusing the entire materials both oral and documentary reasonable doubt arises as to the case of the prosecution and the prosecution has not proved its case beyond all reasonable doubt. The trial Court has not taken into consideration all these aspects of the matter and wrongly read the evidence and wrongly proceeded to convict the accused. The judgment and order of conviction are illegal and they are not sustainable in law. Hence, the benefit of doubt will have to go in favour of the accused. Accordingly, the following order is passed.

ORDER

Appeal filed by the appellant-accused is allowed. Judgment and order of conviction dated 13.09.2013 passed by the learned Special Judge at Haven in Spl. (Lok) C. No. 5/2007 is hereby set aside. The accused is acquitted of the offences punishable under Section 7 , 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.

Bail bonds executed by the appellant-accused stands cancelled.