State vs M. Siddaraju

V. Suri Appa Rao, J.—This appeal is directed against the Judgment of acquittal passed by the learned III Additional District & Sessions Judge. Mysore in S.C. No. 56/2009, whereby the respondent/accused was acquitted u/s 235(1) of Cr.P.C. for the offences under Sections 7, 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act. Aggrieved by the judgment of acquittal, the State represented by Lokayuktha Police, Mysore filed this appeal.

For the sake of convenience the parties are referred to as they are arrayed in the Sessions Case No. 56/2009.

The relevant facts leading to filing of this appeal are as under:

The accused was working as Assistant in Chamundeshwari Electricity Supply Company Limited, Varuna Branch, which is under the control of the Government. CW-4 (PW-5) - Madappa was running a Huller and Flour Mill in Mudalahundi Village. He had raised loan from Primary Land Development Bank in the year 2002 as he was entitled for subsidy of Rs. 7,700/- from the Government. He therefore, approached the concerned authority for release of the subsidy, they directed him to produce electricity bills for the relevant period to show that he has established Huller and Flour Mill. He has therefore authorized his son M. Raju--PW-1 to go to the electricity office and obtain extract of the register of payment of electricity by him. Therefore, on 13.06.2008 PW-1 went and met the accused who was incharge of the branch for issue of extract regarding payment of electricity. The accused demanded an amount of Rs. 500/- to issue the extract. PW-1 thereafter went to Lokayuktha Office and gave complaint. On the basis of which, a case was registered by Investigating Officer-CW-20 (PW-8) and afterwards he secured CWs 2 and 3 and in their presence entrustment mahazar was prepared in the office of Lokayuktha and Rs. 500/- was sprinkled with phenolphthalein power was given to PW-1 with instructions that he should hand over the money to the accused if he again demand for the same and PW-3 was instructed to go along with PW-1 as a shadow witness and observe the happenings in the office of accused. Subsequently, on 17.06.2008 when PW-1 went and met the accused, he demanded Rs. 500/- from PW-1. PW-1 handed over Rs. 500/- sprinkled with phenolphthalein powder to the accused and accused received the amount and kept in his pocket. Afterwards, the accused was apprehended by the Lokayuktha Police and when the finger prints of the right and left hand of the accused were dipped in sodium carbonate solution separately, the colour of the solution turned into pink colour and when the accused was questioned about the money received from PW-1, the accused took the amount from the pocket and produced before the Investigating Officer and the same was seized. The accused gave explanation to the Investigating Officer that the complainant forcibly gave the amount to him and he did not insist for bribe amount. Thereafter, CW-20 (PW-8) conducted further investigation and filed the charge sheet.

The learned Sessions Judge after hearing the Public Prosecutor and the learned Counsel for the accused framed the Charges u/s 7 and Section 13(1)(d) r/w. Section 13(2) of Prevention of Corruption Act. The plea of the accused is one of denial. Thereupon ,the prosecution examined PWs 1, to 8 and marked Ex. P1 to P27 and MOs 1 to 11.

Considering the oral and documentary evidence produced by the prosecution, the learned Sessions Judge found that though the prosecution has proved that the accused had demanded Rs. 500/- as bribe from PW-1 due to defective sanction order the accused cannot be convicted for the offence alleged against him. Accordingly, he acquitted the accused u/s 235(1) of Cr.P.C. Aggrieved by the Judgment of acquittal, the Lokayuktha Police, Mysore filed this appeal.

Learned Counsel for the complainant submitted that as per the Service Rules, the appointing Authority has got power of removal. The provision of Section 14(a)(e) of the Karnataka Electricity Board Employees (Classification, Discipline, Control and Appeal) Regulations 1987 which was amended w.e.f. 20th March 2002. PW-6 B. Vyramudi, Superintendent Engineer of Chamundeshwari Electricity Supply Co. Ltd., was the appointing authority in respect of the incident is concerned. He is expected to impose major penalty including the penalty of dismissal. Therefore, the Sessions Court was not justified in holding that PW-6 is not competent to issue Ex. P23 - sanction order to prosecute the accused. Therefore, the sanction order Ex. P23 issued by PW-6 is valid and when the Sessions Judge observed that the prosecution has proved that the accused demanded and accepted bribe from PW-1, the accused is liable for punishment for the offences for which the accused was charged and that the Judgment and acquittal is therefore liable to be set aside.

Heard the learned SPP and Counsel for the accused.

The only point for consideration in this appeal is:

Whether the sanction order-Ex.: P23 issued by PW-6 is valid?

According to prosecution, the accused who was working as Assistant in Chamundeshwari Electricity Supply Company Limited, Varuna Branch had demanded PW-1 to pay a sum of Rs. 500/- to issue the extract of the register regarding payment of electricity for production of the same for claiming subsidy from the Government. PW-1 therefore lodged a complaint before the Lokayuktha Police, Mysore. The Lokayuktha Police registered the complaint, secured the presence of PWs 2 and 3 and prepared the mahazar. The amount of Rs. 500/- was sprinkled with phenolphthalein powder was given to PW-1 to hand over the same if the accused again demand for the same and on 17.06.2008 PW-1 met the accused for extract of the register the accused demanded Rs. 500/-. Therefore, PW-1 handed over the money sprinkled with phenolphthalein powder. When the accused received the same and kept it in his pocket, he was apprehended by the Lokayuktha Police The accused contended that he never demanded any bribe from PW-1 and that PW-1 forcibly kept the amount of Rs. 500/- in his pocket.

Out of the prosecution witnesses examined, PW-1 - M. Raju is the complainant, PW-2 - Ganesh R.C. and PW-3 - G. Raju are the panch witnesses, PW-4 -Sukumar Raju is the Assistant Engineer, PW-5 -Madappa is the father of PW-1, PW-6 - Vyramudi is the Superintendent Engineer who issued Ex. P23 - sanction order, PW-7 - Shivashankar is the Joint Director of Chamundeshwari Electricity Supply Co. Ltd., and PW-8 -D. Jayaram is the another Investigating Officer. He completed the investigation and filed charge sheet.

Learned Special Prosecutor representing the Lokayuktha Police contended that in view of the amendment to the KEB (CDCA) Regulations, Section 14(a)(f) PW-6 is the competent authority to issue the sanction order. Therefore, the judgment of acquittal recorded by the Special Court is liable to be set aide and the accused is liable for conviction for the offences for which he was charged.

Per contra, the learned Counsel for the accused submitted that though who is the competent authority to sanction for prosecution and PW-6 has no power to issue sanction order. Therefore, the sanction order issued by FW-6 is defective. The Trial Court was therefore rightly acquitted the accused on this ground and there are no grounds to interfere with the judgment of the Trial Court.

Learned Counsel for the accused further contended that if two reasonable conclusions are possible on the basis of the evidence record, the appellate Court should not disturb the finding of acquittal recorded by the trail Court. In support of his contention, the learned Counsel for the accused placed reliance in the case of Chandrappa and Others Vs. State of Karnataka, He further placed reliance in another decision of this Court in the case of D. Rajendran Vs. State by Police Inspector, B.O.I. ( 2004 (2) KCCR 1233 wherein this Court held "Corroboration of Evidence of complainant by shadow witness is a must-Unless the evidence of the complainant and the shadow witness corroborate with each other it is not safe to convict the accused persons under the Prevention of Corruption Act for the offence under Sections 7 and 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act".

Relying on the above decision, the learned Counsel for the accused submitted that the evidence of the complainant and the shadow witnesses is not consistent and corroborative. Therefore, the learned Trail Judge was not justified in observing that the prosecution is able to prove that accused demanded bribe of Rs. 500/from PW-1.

The learned Special Prosecutor for Lokayuktha filed copy of Resolution of the Board of Directors delegating the powers to appoint the authorities, permitted the Lokayuktha for prosecuting the accused/officer. As per the Resolution dated 27th February 2002 the Board of Directors of KPTCL decided that suitable amendment to be made to affirm the powers and the duties of the Appointing Authorities so far as according prosecution sanction and taking further action are concerned and to give clarity in the Regulations. A new Sub-Clause is ordered to be added as Sub-Clause(f) under Regulation 14(A) of KEBEs'' (CDC & A) Regulations, 1987, which reads as follows:

In accordance with the preamble above, the following sub-clause is ordered to be added as sub-clause (f) after sub-clause (e) under Regulation 14(A) of KEBEs (CDC & A) Regulations, 1987.

(A)(f): However, in respect of cases of criminal prosecution investigated either by the Lokayukta or by any other Authorities, the Appointing Authorities specified in the Schedules to these Regulations, competent to impose the penalty of removal on the accused employee shall, if they deem fit after verifying the records accord sanction to prosecute the accused employee. On the outcome of the said criminal case, the Appointing Authority of the post of the said criminal case, the Appointing Authority of the post of the said employee shall be competent to take further action''.

These orders shall come into force with immediate effect.

By the above amendment, which came into effect from 20.03.2002, the Superintendent Engineer who is appointing Authority in respect of assistance is empowered to impose major penalty including the penalty of dismissal as contemplated under Regulation 9(v)(2(8) of the KEBEs'' (CDC & A) Regulations, 1987. In view of the amendment of Section 14(A)(f), PW-6. --Superintendent Engineer is competent to issue sanction order-Ex. P23 to prosecute the accused. Admittedly, the accused in this case was trapped by the Lokayuktha Police on 17.06.2008 after the amendment to Section 14(A)(f) is came into force.

By virtue of the amendment to the Regulations, PW-6 is the competent authority to issue sanction order, the judgment of the Trial Court in acquitting the accused on the ground of defective sanction order is liable to be set aside. Accordingly, the appeal filed by the Lokayuktha Police, Mysore is allowed. The order of acquittal recorded by the Trial Court on technical ground is hereby set aside and the matter is remanded back to the Trial Court to dispose of the appeal in accordance with law, considering the evidence of the witnesses and the applicability or otherwise of the judgments relied on by the Counsel for the accused.

The Special Judge is directed to dispose of the matter within three months from the date of receipt of copy of this judgment and the entire records.

The Registry is directed to send the entire records to the trial Court immediately.