State vs B.K. Prakash Shetty

V. Jagannathan

The acquittal of the respondent-accused in respect of the offences punishable under Sections 7, 13(1) (d), 13(2) of the Prevention of Corruption Act, 1988, (for short, hereinafter referred to as ''the Act''), is called in question by the State-Lokayuktha Police in this appeal. The case of the prosecution in short is that the accused while working as Second Division Surveyor in the Taluk Office, Devanahalli, demanded from the complainant-Basavegowda, Rs. 2, 000/- as illegal gratification for fixing the boundary stones into the land of the complainant bearing Sy. Nos. 29/2 and 29/3 at Vaddarahalli Village, Devanahalli Taluk. According to the prosecution, the initial demand was for Rs. 5,000/- and it was reduced to Rs. 3,000/- and finally to Rs. 2,000/-. On the first demand being made, the complainant unwilling to pay the bribe amount of Rs. 2,000/- approached the Lokayuktha Police with a complaint as per Ex. P-7. There afterwards, the investigation proceeded by drawing the spot mahazar as per Ex. P-2, followed by the complainant accompanied by the shadow witness (PW-1) going to the office of the accused and the trap was successful as is clear from the trap mahazar-Ex. P-2. On completion of the investigation, charge sheet was submitted.

Following the accused pleading not guilty, at the trial, the prosecution examined 6 witnesses and got marked 9 documents along with 9 M.Os, The accused lead no defence evidence except marking documents Exs. D1- to D7. The learned Trial Judge after considering the entire evidence on record was of the view that the prosecution had not brought home the guilt of the accused beyond all reasonable doubt and presumption in favour of the prosecution u/s 20 of the Act also cannot be drawn in view of the nature of the evidence on record and consequently the accused was acquitted. Even the sanction order passed as per Ex. P-3 was held to be not proper.

Challenging the acquittal of the respondent, the state-Lokayuktha contends through its counsel, Sri S.G. Rajendra Reddy, that the order of acquittal requires to be set aside for the following reasons:

It is the submission of Sri S.G. Rajendra Reddy, Learned Counsel for the appellant that though the complainant was examined as PW-5, he did not support the prosecution case insofar as the demand made by the accused is concerned. The evidence of the shadow witness-PW-1 clearly goes to show that the accused demanded and accepted Rs. 2,000/- from the complainant. The evidence of the I.O. examined as PW-7 also confirms the aforesaid evidence of PW-1. Therefore, notwithstanding the complainant not supporting the prosecution case, the Trial Court could not have acquitted the accused. Moreover, the reasons given by the Trial Court also cannot be justified and there has been no discussion of the evidence in detail, as is required to be done in law. The Learned Counsel also pointed out that the Trial Court also erred in observing that the application was filed by the complainant only for measurement of the land and not for the purpose of fixing the boundary stones. Referring to the contents of the complaint, it is therefore argued that the complainant''s specific case is that ha approached the accused with an application requesting for fixing of the boundary stones. The judgment of the Court below, therefore, suffers from all these defects and as such the accused be convicted by setting aside the order of acquittal passed by the Court below. It is also argued that corroboration for the complainant''s case need not be always direct and secondly, even if the panch witness turns hostile, nothing prevents the Court from acting on the evidence of the Trap Officer, that is the I.O. As such, relying on the decisions reported in 1995 CRL.L.J. 3656 Ramesh Kumar Gupta v/s. State of M.P. and AIR 1993 SC 1474 State of U.P. v/s. Zakaullah, Learned Counsel for the appellant sought for the appeal being allowed and to convict the respondent.

Sri V.Y. Kumar, Learned Counsel for the respondent supported the judgment of acquittal passed by the Court below by contending that out of the 6 witnesses examined, two of them including the complainant have not supported the prosecution case. There is nothing in the evidence of the complainant examined as PW-5 to show that the accused had demanded bribe amount. The panch witness examined as PW-2-Lokesh also has confirmed that accused did not demand any bribe amount from the complainant and this witness also turned hostile. In the face of such evidence of these witnesses, the Trial Court rightly did not act upon the sole evidence of shadow witness-PW-1. It is also argued that the specific defence version of the accused was that he never demanded bribe amount and amount was forcibly put into his pockets by the complainant. Learned Counsel also pointed that the prosecution case also suffers from other infirmities and one such infirmity is that there is no corroboration between the witnesses with regard to actual time of trap. PW-5-complainant says that the incident happened at 3 p.m. whereas the shadow witness-PW-1 says that the incident occurred at 4.15 p.m. and the time mentioned by the I.O. is between 4.30 p.m. to 4.45 p.m. and therefore, there being no consistent evidence with regard to the actual time of the incident, the testimony of PW-1 could not be acted upon, apart from the fact that the Trial Court has also observed that PW-1 happened to be a stock witness for the Lokayuktha Police, In the face of such evidence on record, it cannot be said that the prosecution has brought home the case against the accused beyond all reasonable doubt. Pointing to the explanation given by the accused as per Ex. P-10, the contents of which are also admitted by the I.O. himself, it is argued that the specific stand of the accused was he never demanded the bribe amount and it was forcibly given to him by the complainants As such, the overall evidence has rightly lead to the acquittal of the accused and the view taken being a possible view from the material on record, this Court sitting in appeal, therefore, cannot interfere with the view taken by the Court below.

To support the aforesaid submission, reliance is placed by the Learned Counsel,Sri V.Y. Kumar, on the decisions of the Apex Court reported in K. Subba Reddy Vs. State of Andhra Pradesh, , CDJ 2007 SC 1017 Ganapathi Sanya Naik v/s. State of Karnataka and CDJ 2010 SC 324 Banarsi Dass v/s. State of Haryana. The suggestion, therefore, made is that mere recovery of tainted amount from the accused cannot be a sole ground to convict the accused when the evidence on the whole probabalises the defence version also. Therefore, the acquittal of the respondent requires no interference at the hands of this Court.

Having thus heard both sides and after going through the records of this case, ''whether the State has made out a case for this Court to interfere with the judgment of acquittal?'', is the point for consideration.

It is a settled position in law that if the evidence on record permits more than one view being possible and the Trial Court accepts one view and acquits the accused, the appellate Court cannot interfere with the view taken by the Court below, merely because another view is also possible. With this proposition in law, I have examined the material on record.

It is the case of the complainant as per the complaint-Ex. P-7 that he approached the accused for the purpose of fixing the boundary stones and for that accused initially demanded Rs. 5,000/- and brought it down to Rs. 2,000/-. Of the six witnesses examined by the prosecution, the material witnesses are the complainant and the shadow witness. The complainant-Basavegowda examined as PW-5 deposes in the examination-in-chief that he went to the office of the accused at 3 p.m. along with the official from Sericulture Department there was no demand made by the accused. On the other hand, the evidence of PW-5 is that he himself tendered the money to the accused as accused asked him to wait and then PW-5 insisted the accused that he has to receive the amount and then accused received the amount and kept in the left side pocket and by that time, Lokayuktha Police entered and caught hold of the accused by his hands. He also speaks to the pant pocket wash and the shirt wash turning the solution into pink colour. However, he also says in his evidence that the hand wash of the accused was also taken. In the cross-examination, he states that the hand wash of the accused was not taken and secondly, that the hand wash of the accused slightly changed the colour, but it was not pure red colour. Thus, from the evidence of PW-5, it cannot be said that the prosecution has established that the accused demanded the bribe amount from the complainant and accepted the same. On the other hand, the say of the complainant that he insisted the accused to receive the money also gives an indication that there was no demand by the accused at the first instance.

PW-1-Manjunatha is the shadow witness and he has deposed to the effect that by about 4.15 p.m. he along with the complainant went to the office of the accused and the complainant asked the accused about the position of the survey application and then the accused questioned whether the complainant had brought what was asked for and the. complainant removed the money and gave it to the accused and the accused collected the same in his right hand to put it into his left hand and then to his left side pocket. There afterwards, the signal was given and Lokayuktha Police came and caught hold of the accused. The shadow witness has also stated that the accused gave explanation to the effect that accused did not demand any bribe amount from the complainant, but the complainant gave it voluntarily. It has been brought down in the cross-examination of the shadow witness that they reached there at bout 3.30 p.m. or 4 p.m.

The next witness for the prosecution is the panch witness examined as PW-2-Lokesh and this witness has also turned hostile to the side of the prosecution and his say is that the accused did not demand any money from the complainant, but complainant voluntarily gave the money and the Inspector removed the notes from the pocket of the accused.

It has come in the evidence of the I.O., who was examined as PW-6, that the accused gave his explanation as per Ex. P-10 and has reiterated in the cross-examination and also in the reply given as per Ex. P-10, that the accused has contended that the complainant has thrust the amount into the pocket. From the aforesaid evidence on record, it therefore, appears or can be gathered that there are two versions emerging from the evidence on record. The evidence of PW-5-complainant and PW-2-shadow witness coupled with the explanation-Ex. P-10 given by the accused give indication that the accused never demanded any bribe amount from the complainant, but it was insisted upon the money being taken by the accused. At the same time, it is also the evidence of the shadow witness that accused demanded and accepted the bribe amount. Since the evidence of shadow witness is not corroborated by the complainant himself coupled with the shadow witness-PW-2 also confirming that accused never demanded bribe amount and the explanation given as per Ex. P-10 also being spoken to by the I.O. as having been given by the accused immediately after the trap, the prosecution therefore, cannot be said to have established beyond all reasonable doubt that accused demanded and then accepted the bribe amount.

Apart from these, whether the amount was taken out by the complainant himself from his pant pocket or the I.O. taken out the amount from the said pocket is also not clear from the aforesaid evidence of the prosecution witnesses. As far as the work is concerned, it has come in the evidence of PW-3-Joint Director, who has received the sanction order, that the survey is done by the Department by taking out the measurement first and second stage is fixing of the boundary and the persons who wants the boundary stones to be fixed, have to pay necessary charges. In view of this evidences of PW-3, the charges also being paid by the complainant towards fixing of the boundary stones, but no such evidence is forthcoming from the prosecution side. Whether in the case of such evidence on record, the accused can be convicted is the point for consideration and this takes us to the decisions referred to by the Learned Counsel for the parties,

In the case of K. Subba Reddy Vs. State of Andhra Pradesh, , the Apex Court has held that the accused cannot be convicted for the offence of bribe in the absence of sufficient evidence and the context in which the aforesaid observations were made was in the case before it, the Apex Court found that there was no material to show that accused had the knowledge regarding the money being bribe amount. Therefore, the Apex Court set aside the conviction of the accused.

In the case of Banarsi Das v/s. State of Haryana reported in CDJ 2010 SC 324, the Apex Court has held that it is a settled canon of criminal jurisprudence that the conviction of the accused cannot be founded on the basis of inference and the prosecution has to lead cogent evidence in that regard to prove the guilt of the accused beyond all reasonable doubt. The observations further made was that demand and acceptance of the amount is sine qua non for the conviction of the accused and when two witnesses are turned hostile by denying the statement made u/s 161 of Cr.P.C., the Apex Court gave the benefit of doubt to the accused on technical ground. It was also held in the very same case that. mere recovery of tainted money divorced from the circumstance under which it is paid would not be sufficient to convict the accused despite presumption.

In yet another decision referred to by the Learned Counsel for the respondent, in the case of Ganapathi Sanya Naik v/s. State of Karnataka reported in CDJ 2007 SC 1017, the Apex Court observed that in the face of the evidence that the currency notes had not been touched by the appellant and the Trial Court taxing the view that there was no occasion to make a demand for bribe, on these set of facts, the Apex Court therefore, acquitted the accused by setting aside the judgment of the High Court.

In yet another decision referred to by the Learned Counsel for the respondent, in the case of C M Girish Babu v/s. CBI, Cochin, High Court of Kerala reported in CDJ 2009 SC 333, it was held by the Apex Court that when it was suggested to the prosecution witnesses that the money that was paid to the accused was not the bribe amount but it was towards repayment of loan taken from accused No. 1 and similar suggestion being put to the I.O. also, the Apex Court therefore, held in the said circumstances that mere recovery of the amount itself cannot prove the charge of the prosecution in the absence of evidence to prove demand of bribe or to say that the accused voluntarily accepted the money knowing it to be bribe, the presumption u/s 20 of the Act is inviolable one.

In tie light of the aforesaid decisions, in the case on hand also two of the prosecution witnesses namely, the complainant as well as the panch witness did not support the prosecution case. The specific stand of the accused is that he was not ready to accept the bribe amount but the money was forcibly given to him. It is also borne out from the explanation-Ex. P-10, the contents of the same are also not disputed by the I.O. The only evidence with regard to the demand of money is that of the shadow witness-PW-1, but it lacks corroboration from the very complainant himself. The Trial Court, therefore, held that there was no proof of the demand made by the accused and consequently, it acquitted the accused. Of course, some of the reasons given by the Trial Court are not correct, yet the overall view taken is consistent with the material on record.

Aforesaid decisions referred to by the Learned Counsel for the appellant are concerned, in the case of Ramesh Kumar Gupta v/s. State of M.P. reported in 1995 CRL.L.J. 3656, the Apex Court has held that evidence regarding demand and acceptance of bribe can also be established by way of circumstantial evidence and corroboration need not be direct. That was a case where the Apex Court found on facts that the evidence of the complainant was sufficiently corroborated by the surrounding circumstances. In the case on hand, the complainant himself has'' not supported the prosecution case. Therefore, the said decision is not applicable to the case on had.

As far as the decision referred to in the case of State of U.P. v/s. Zakaullah reported in AIR 1998 SC 1474 is concerned, the Apex Court has held that evidence of trap officer can be relied on even without corroboration and even in that case, the complainant had supported the prosecution case, but other witnesses did not corroborate him and therefore, the Apex Court observed that evidence of the I.O. can be relied upon. This decision also therefore does not apply to the present case, in the light of the nature of the evidence let in by the prosecution. For the aforesaid reasons, the view taken by the Trial Court on overall material on record being a possible view, this Court in appeal, therefore, cannot upset the order of acquittal and consequently, the appeal has to fail and it is dismissed.