Srinivas Baburao Kulkarni vs State

Anand Byrareddy, J.—Heard the learned counsel for the appellant and perused the record.

The facts are that the appellant was a public servant who was working as a First Division Assistant in the Office of the Sub-Treasury, Sindagi. It was alleged by the complainant that on 18.2.2006, when he went to the office of the Sub-Treasury, Sindagi to inquire about a bill of Rs.20,364/- pertaining to his wife, he had met the appellant-accused and had requested that the bill be passed, at which, the appellant is said to have told him that there was no budget and on his repeated request, the accused had demanded a bribe of Rs. 1,000/- to pay him finally and that the amount should be brought on the next day.

Since the appellant had no intention of paying any such bribe, he had immediately filed a complaint with the Lokayukta Police on 19.1.2006, It is thereafter that the Lokayukta Police had taken steps to catch the appellant red-handed while receiving bribe amount and therefore had drawn assistance of PW. 1, who was an Office Superintendent in the Army Welfare and Rehabilitation Department, Bijapur, apart from a Second Division Surveyor, PW.3 working at the Tahsildar''s office. PW.6, the Police Inspector of Lokayuktha, along with aforesaid persons, having formed themselves into a team after making preparations of carrying out the trap by instructing PWs. 1 and 2 as to the modes to be adopted in laying a trap and to catch the appellant red-handed on 19.1.2006, had instructed PW.2, to go to the office of the appellant and engaged him as regards the payment of the bribe and thereafter, to signal the raiding team in order that they could trap the appellant.

Accordingly, at about 3.20 p.m., on 19.1.2006, PW.2 had come to the office of the appellant and when the appellant had asked him whether he had brought the bribe amount and on being told that he had indeed brought the amount, the appellant is said to have taken PW.2, the complainant to a tea-stall outside the office and after having had tea, the appellant is said to have demanded the bribe amount. PW.2, the complainant had handed over the phenolphthalein powder smeared currency notes to the accused and he had received the same in his right hand and kept the notes in his trouser pocket. The shadow witness PW. 1 ambiguously claimed that he was watching this from a distance, but also as an after-thought, in the course of his cross-examination stated that he was along with PW.2. Thereafter, PW.2 having signalled the raiding team of the Lokayukta Police, they had immediately apprehended the appellant and had washed his hands with sodium carbonate solution against much resistance by the appellant and thereafter when it was found that his hand was indeed tainted with phenolphthalein powder, as the solution had turned pink, he was then asked to produce currency notes received and when he removed the notes from his pocket, his hand was again dipped in the sodium carbonate solution, which had turned pink in colour. It is in this fashion that the Lokayukta Police had prepared a panchnama detailing the manner in which the same was done and a rough sketch was even prepared indicating the position in which the appellant had been trapped etc.

It is on the basis of this evidence that the appellant was sought to be prosecuted after being arrested. At the trial, the appellant having pleaded not guilty and having claimed to be tried, the court below had framed the following point:

"1. Whether the prosecution has proved beyond reasonable doubt that, prior to 19.1.2006 the accused being a public servant, while working as FDA in the office of Sub-Treasury at Sindagi, demanded bribe of Rs. 1,000/- from the complainant and demanded and accepted the pecuniary advantage of Rs.1000/- on 19.1.2006 at 3.35p.m. in front of Hanuman temple towards western gate of the said office as illegal gratification other than legal remuneration for sanctioning the maternity bill of the wife of complainant who working as an Assistant Teacher, for the period from 17.11.2004 to 4.4.2005 and abused his position as FDA and committed criminal misconduct and thereby committed the offences punishable under Sections 7 and 13(1)(d) read with section 13(2) of the Act?"

The court below has answered the same in affirmative and had convicted the appellant for the offences punishable under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the ''PC Act'', for brevity) and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.5,000/- for the offences under Section 7 read with section 13(2) of the PC. Act and also to undergo rigorous imprisonment for 2 years and to pay fine of Rs.5,000/- for the offences punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act. It is that which is under challenge in the present appeal.

At the outset, the learned counsel for the appellant would submit that it was incumbent, on the prosecution to establish the primary ingredient of the offences punishable under the aforesaid provisions and that there was a demand for bribe by the appellant and payment of bribe by the complainant. In this regard, not only the evidence of the PW.2, the complainant was relevant, but also that of the shadow witness, who ought to have corroborated that the demand by the appellant was heard and that there was payment made by the complainant as witnessed by him. It is pointed out that the trial court has noticed that PW.1 had deposed that when the complainant PW.2 went inside the office of the accused to give money, he was standing near the door and that the accused had taken PW.2 outside the office near the tea shop near Hanuman temple and the complainant had asked the accused whether he had passed the bill and the accused told him that he had already passed the bill and asked the accused to give Rs. 1,000/- to the accused and that the accused had received it and had put in his pocket. After coming into the office, PW.2 had signalled the Lokayukta Police who were waiting outside, who in turn, had taken the appellant into custody and carried out further steps to ascertain that he had received the tainted currency notes. But however, the court below has noticed that PW.l has not in his evidence stated about the demand of bribe by the accused in his office and even though it is evident from the record that the court has held that it does not discard the evidence of PW. 1 regarding the demand and acceptance of bribe by the accused and even though PW. 1 had admitted in his cross-examination that if one stood near the door of the office of the accused, one could not see and hear what happened near the Hanuman temple. This again, the trial court has held, does not assume much importance as PW.1 had volunteered that he was all along with PW.2. This effort on the part of the PW.1 is apparently an after-thought and hence he would submit that it has not been established as required in law that there was demand and payment of the bribe amount.

This significant circumstance, as rightly pointed out by the learned counsel for the appellant would not enable the prosecution to contend that it has established the factum of demand and receipt of bribe. The court below was also not justified in glossing over this lacuna in holding that PW.1 has not corroborated the evidence of PW.2, to the effect that he had heard the demand being made by the accused and payment having been made by the complainant. On this ground alone, the conviction of the appellant stands vitiated.

The appeal is allowed. The judgment of the court below is set aside. The accused is acquitted. The fine amount, if any paid, shall be refunded to the appellant.