State vs Sri. Maulasab Bukitgar

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Counsel for the respondent. The appeal is filed by the State - Lokayukta Police challenging the acquittal of the respondent on charges of offences punishable under sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the ''PC Act'', for brevity).

The facts of the case are as follows:-

It was alleged that during the year 2006, when the respondent was working as a Revenue Inspector, Ward no. 95, of the Office of the Assistant Revenue Officer, Bruhat Bengaluru Mahanagara Palike one Thulasamma, the wife of the complainant is said to have submitted an application for transfer of khata of property bearing no. 17 of Kavalbyrasandra and that the complainant B. Ramaiah had approached the respondent in connection with the pending application. The respondent is said to have demanded illegal gratification of Rs. 5,000/- to process the application. However, he agreed to receive Rs. 3,000/-. Since Ramaiah was not inclined to pay the bribe, he had reported the matter to the Police Inspector, Lokayukta Police on 19.8.2006 at about 4.00 or 4.15 p.m. The Police Inspector, in turn, had summoned one Pramod and one Dhanraj and he had prepared a pre-trap mahazar, after instructing the panch witnesses of the routine and the manner in which a trap would be executed. It is claimed that at about 4.35 p.m., the Lokayukta staff and the witnesses went to the office where the respondent was working and the complainant accompanied by Pramod PW. 1 went to the office of the accused and met the accused and he had inquired about the application for change of khata in respect of the property submitted by Thulasamma and the accused is said to have inquired whether he had brought the money and when he answered in the affirmative, the respondent is said to have taken the currency notes, which were treated with phenolphthalein powder, with his right hand, counted the currency notes and placed it in his shirt pocket. It is thereafter that the complainant had signaled the Police Inspector, Lokayukta and his staff, who immediately, apprehended the respondent and washed his hands in Sodium Carbonate solution, to establish that he had handled the currency notes and collected the solution as material evidence to be produced before the court. Thereafter, the currency notes also were seized, which tallied with the numbers which had already been noted down. It is in that background that a case was registered against the respondent and thereafter, a charge sheet having been filed and the respondent having pleaded not guilty and having claimed to be tried, the prosecution examined five witnesses and marked exhibits Exs. P.1 to P.25 and material objects MOs. 1 to 13 and the accused has been examined u/s 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''Cr.P.C.'', for brevity). The court below, after hearing the arguments, has framed the following points for consideration:-

i) Whether the prosecution proves that the sanction for prosecution of accused is valid and in accordance with law?

ii) Whether the prosecution proves beyond reasonable doubt that the accused during the year 2006, was public servant working as Revenue Inspector, Ward No. 95, Office of the Assistant Revenue Officer, Queens Road, Bangalore Mahanagara Palike, Bangalore and that the wife of complainant Smt. Thulasamma had submitted application for transfer of khata of property bearing No. 17 of Kavalbyrasandra and that the complainant CW 1 B. Ramaiah approached the accused in connection with transfer of khata and that the accused demanded bribe of Rs. 5,000/- from him for change of khata and later, the accused agreed to receive Rs. 3000/- for change of khata and that on 19.08.2006 at about 5.00 p.m. in the office room of the accused, he demanded and accepted Rs. 3000/- as bribe from the complainant as gratification other than legal remuneration as a motive or reward for changing khata in the name of wife of Complainant Smt. Thulasamma thereby the accused committed an offence punishable U/Sec. 7 of Prevention of Corruption Act, 1988?

iii) Whether the prosecution further proves beyond reasonable doubt that the accused being public servant as stated above by corrupt or illegal means or by otherwise abusing their position as a public servant, accused obtained bribe of Rs. 3,000/- as pecuniary advantage on 19.08.2006 at about 5.00 p.m. in the office room of the accused, without public interest from the complainant B. Ramaiah and thereby they committed a criminal mis-conduct which is an offence punishable U/s. 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988?

The court below has answered point no. 1 in the affirmative and other points in the negative.

It is this which is under challenge in the present appeal.

The learned Counsel for the appellant would contend that the court below, in acquitting the accused, has highlighted certain inconsistencies. It is pointed out that it was the case of the prosecution that the complainant PW. 3 had lodged the complaint at about 3 p.m., whereas in his cross-examination, he has stated that the complaint was lodged at about 4.00 p.m. or 4.15 p.m. PW. 1, a shadow witness, has stated that on 19.8.2006, the Police Inspector had introduced him to the Lokayukta Inspector and he was asked to go as a witness at about 1.30 p.m. This, the court finds to be inexplicable, as the complaint if it came much later in the day, it was odd that a witness was being requested to offer himself as a shadow witness much earlier. There was no explanation offered by the prosecution to the trial court in this regard. The entrustment mahazar, as stated by PW. 1, a shadow witness, was conducted from 1.30 p.m. Again it is pointed out that when the complaint was lodged at 4.30 p.m., the court has found it odd that the investigating officer had conducted the entrustment mahazar at 3.30 p.m. to 4.15 p.m., which again is not explained by the prosecution. It is also endorsed by PW. 2, that the trap mahazar was prepared from 1.30 p.m. Therefore, the evidence of PWs. 1 and 2 is totally contradictory and inconsistent with the evidence of PW. 3. The court has therefore concluded that the complaint and the First Information Report are the documents, which would set the criminal law in motion and when there is a serious discrepancy as to the time at which it was lodged and the preparation for the trap apparently having commenced even before the complaint was lodged, was a circumstance which could not be ignored. This finding is sought to be questioned in the present appeal, while affording an explanation to the effect that the Police Inspector, Lokayukta has secured official witnesses, in connection with another case in Crime No. 29/2006 at about 11.30 a.m. As the trap laid in that case was not successful, the staff of the Lokayukta and the witnesses had returned to the Lokayukta Office. At that point of time, yet another case was registered in Crime No. 30/2006. Therefore, the witnesses, who had been prepared in Crime No. 29/2006 were requested to act as witnesses in the later case also. This has lead to a confusion among the witnesses PWs. 1 and 2 as to the preparation of the entrustment mahazar. This, the learned counsel would submit that, would not destabilize the case of the prosecution, when otherwise the demand, acceptance and recovery have been proved by the prosecution.

Secondly, the court has arrived at a finding that the evidence of the shadow witness being significant to ascertain whether there was a demand and acceptance of the bribe amount from the complainant and the court has recorded that PW. 1, who had accompanied the complainant, had met the accused and had inquired about the work and there was exchange between the respondent and the complainant as to the bribe amount and that it was paid to the accused and the accused had received. However, in the evidence of PW. 1, it is stated that when he and the complainant met the accused, the complainant had asked the accused whether his work had been completed and the complainant took out money from his pocket in his right hand and handed over to the respondent. He has also stated that the respondent had never asked the complainant whether he had brought the bribe amount. Therefore, the court has concluded that the accused has never demanded the bribe amount and hence, the demand of the bribe amount by the respondent was not established. In this regard, it is contended that the court was not justified in concluding that there was no demand and acceptance by the respondent.

It is contended that it was not the case of the respondent that he had not received any currency notes and his claim that the same were received, towards the stamp duty payable to the corporation as fees for the transfer of khata, was an assertion which required to be established by the respondent by tendering evidence and this not having been done, it could not be said that the evidence of PW. 1 does not disclose the demand and acceptance of the bribe amount when it is asserted that the complainant had handed over the currency notes to the respondent. Hence, the learned Counsel seeks to contend that the court below has committed a serious error in giving undue importance to minor inconsistencies and it has misdirected itself in holding that the evidence on record has not established the charges against the accused. It was not expected of the prosecution in every given case to tender evidence with mathematical precision and therefore, the manner in which court below has viewed the evidence is perverse and leads to a miscarriage of justice and seeks that the appeal be allowed.

Insofar as the inconsistency as to the time at which the entrustment mahazar was prepared, which is inconsistent and does not explain the assertion that the complaint was filed much later in the day, now sought to be explained by raising a ground in the appeal, would not advance the case of the appellant. This was a significant inconsistency, which should have been explained by placing the necessary material before the court or in eliciting the details of other cases, in which, the witnesses PWs. 1 and 2 had also acted as witnesses, in order that such an explanation that is now offered can be accepted. There is no such endeavour. Therefore, the doubt expressed by the court below and a finding that the inconsistency could be fatal to the case cannot be faulted.

Insofar as the finding that there was no demand made by the respondent and hence, in order to establish the charge, it was necessary to prove that there was demand and acceptance of the bribe amount by the respondent, being a necessary ingredient, cannot be doubted. However, it is also possible that there can be instances where such demand and acceptance may even be existent, without a word being uttered and to that extent, the evidence of PW. 1 having been viewed, to arrive at a finding that there was no demand and acceptance, may not be entirely correct. But then again, the evidence does not indicate whether the amount paid was the bribe amount or actually was the amount towards the stamp duty that would be attracted in respect of the change of khata. As there is no indication of any further conversation, between the complainant and the respondent, as indicated by PW. 1. Therefore, it is not established beyond doubt, that what was paid was the bribe amount.

In the above background, it cannot be said that the court below was not justified in acquitting the accused and hence the appeal fails and is dismissed.