State of Karnataka vs Sri B.M. Moganna Gowda

Hon''ble Mr. Justice:V. Jagannathan

This Criminal Appeal is by the State through Lokayuktha Police, Mysore, calling in question the judgment of acquittal passed by the trial court in favour of the respondent herein in respect of the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (''the Act'' for short). The case of the prosecution, in short, is that, complainant P.W. 4 Basavanna approached the respondent-accused in connection with the compensation amount payable to Chinnathayamma, his sister, in respect of the land measuring 3 acres and 3 guntas in S. No. 396/1 belonging to said Chinnathayamma being acquired by the Government and she was to be paid Rs. 61,216/- towards the compensation. Therefore, when the complainant approached the accused who. at the relevant time, was working in the Land Acquisition Office at Chamarajanagara as First Division Assistant, he demanded Rs. 4,500/- from the complainant and unwilling to pay the amount, the complainant approached the Lokayuktha Inspector and lodged his complaint as per Ex.P-5 on 6.8.1999.

The Lokayuktha police arranged for the entrustment mahazar to be conducted in the presence of the panchas and it was drawn as per Ex.P-2. P.W. 4 complainant, accompanied by P.W. 3 shadow witness, went to the office of the accused on 6.8.1999 and the accused demanded and accepted Rs. 4,500/- from the complainant and thereafter gave cheque to Chinnathayamma. At that time, the Lokayuktha police came and caught hold of the accused and his hands tested positive when immersed in the chemical solution and even the pant pocket also tested positive. On completion of the investigation, charge sheet was submitted against the respondent.

Following the accused pleading not guilty, the learned trial judge recorded the evidence of P.Ws. 1 to 6 in support of the prosecution case apart from marking 27 documents and 9 M.Os. The accused statement was recorded and the accused gave his explanation to question No. 55 put to him u/s 313 of the Cr.P.C.

The learned trial judge after appreciating the evidence on record found certain infirmities in the prosecution case. The defects noticed were, Chinnathayamma, sister of the complainant, was not examined and secondly, the Land Acquisition Officer and the Manager of the office of the accused, who were also present when the complainant went and approached the accused in the office, were also not examined and another defect noted by the trial court in the prosecution case was that, there was no evidence placed to show that the accused was entrusted with the work of giving the cheques to the land owners. After noticing these defects in the prosecution case, the learned trial judge, therefore, entertained a doubt in his mind as to the prosecution having proved its case beyond all reasonable doubt and, therefore, notwithstanding the recovery of money from the possession of the accused, the trial court acquitted the accused by giving him the benefit of doubt.

Learned counsel Shri S.G. Rajendra Reddy for the appellant-Lokayuktha, assailing the judgment of the trial court, contended that the defects noticed by the trial court are not. serious defects so as to disbelieve the prosecution version especially when complainant P.W. 4 has deposed about the demand and acceptance of the bribe amount by the accused and his evidence being fully supported by the evidence of the shadow witness P.W. 3. Referring to the evidence of these two witnesses, it is pointed out that, even during the cross-examination on behalf of the accused, the testimony of P.Ws. 3 and 4 was further reinforced and, therefore, merely because Certain persons viz., Chihnathayamma, sister of the complainant, the Land Acquisition Officer and the Manager, were not examined, that cannot be a ground to disbelieve the testimony of P.Ws.3 and 4 in particular.

Also referring to the explanation offered by the accused during the trap mahazar Ex.P-3, it is argued by the learned counsel for the appellant--Lokayuktha that, even in the explanation before the I.O, the accused has not denied the prosecution version except saying that, when the accused is caught with the bribe amount and his hands being tested positive, what else remains for the accused to explain. Therefore, the court below totally erred in not appreciating the evidence from proper perspective and the conclusion reached by it is totally perverse and contrary to the evidence on record and the reasoning given is also not sustainable in law. As such the appeal be allowed and the respondent be convicted by setting aside the judgment of the trial court.

Learned senior counsel Shri M.S. Rajendra Prasad for the respondent-accused also took this court through the evidence of the prosecution witnesses particularly P.W. 3 shadow witness, P.W. 4 complainant, and P.W. 5 I.O. and contended that the testimony of these witnesses do not inspire confidence as P.W. 3 has deposed in his evidence that Chinnathayamma did not accompany them and once the said evidence is taken into consideration, the prosecution story that the cheque was taken out by the accused and was given to Chinnathayamma also falls to ground.

As far as the work of the accused is concerned, referring to the cross-examination of these two witnesses, it is argued by the learned senior counsel that, no evidence is there to show that the accused was entrusted with the work of giving cheque to Chinnathayamma. He also referred to the answer given by the accused during recording of 313 statement and contended that no work was pending with the accused as the accused was not competent to issue cheques in compensation cases. The evidence of these witnesses also indicate that the Land Acquisition Officer was also present when the complainant went to the office of the accused and non-examination of the Land Acquisition Officer is, therefore, a serious infirmity in the prosecution case.

The learned senior counsel further argued that, merely because the amount was recovered from the possession of the accused, that itself is not a ground to hold that the prosecution has brought home the guilt of the accused. Since the accused was not entrusted with the work of issuing cheques, the acquittal of the respondent does not call for any interference. Reliance is placed on the Apex Court ruling reported in State through Inspector of Police, A.P. Vs. K. Narasimhachary, to support the aforesaid submissions. The learned senior counsel also pointed out that the appeal is against an order of acquittal and the innocence of the accused gets reinforced further on account of the acquittal order passed by the trial court.

Having thus heard the learned counsel for the parties, whether the appellant-Lokayuktha has made out a case for this court to interfere with the judgment of acquittal passed by the trial court is the point for consideration.

Before proceeding to examine the contentions put forward in the light of the evidence on record, it would be useful to keep in view the law laid down by the Apex Court with regard to interference by the appellate court against the judgment of acquittal. The Apex Court, in the case of Anil Kumar Vs. State of U.P., reported in 2005 SCC (Cri) 178, has laid down the parameters of law as under:

There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

It is, therefore, clear from the aforesaid principles of law laid down by the Apex Court that, where the admissible evidence is ignored and the finding recorded is perverse in nature or the view taken is an unreasonable view of the evidence on record, the appellate court would be justified in interfering with the order of acquittal.

Coming to the evidence on record, P.W.4 Basavanna is the complainant and he had deposed about the amount that was to be received by his sister Chinnathayamma i.e., Rs. 61,216/-, and he having approached the accused, who was a clerk in the Land Acquisition Office and the accused demanding 9% commission on the compensation amount and on being told about the inability to pay the amount. Rs. 4,500/-was fixed as the bribe amount. After stating about lodging of the complaint and the drawing up of the entrustment mahazar, insofar as the trap is concerned, P.W. 4 has deposed in his evidence that he went to the office of the accused accompanied by P.W.2 Mahesh and P.W. 3 Nagendra Prasad and on seeing the complainant, the accused asked whether he has come simply for which the complainant told that he had come prepared and then, the accused asked the complainant whether the complainant has come simply or with the amount and on being told that the complainant had come with the amount, the accused received the same from the right hand of the complainant and put the amount into his pant pocket. Thereafter, the accused told the complainant to call his sister who was waiting outside and she came and signed and took the cheque. At that time, the complainant gave signal and the Lokayuktha police came and Mahesh took out the notes from the pocket of the accused and counted them and they were found to be the very same notes which the complainant was given during the entrustment mahazar. Ex.P-3 is the entrustment mahazar, says this witness.

In the cross-examination of P.W.4, more details have been elicited about the whole incident and the witness has once again reiterated that the accused was having cheque with him which was ready about a week back and he had told that would not give the cheque unless 9% commission was given and further, the witness has stated even during cross-examination to a suggestion put to him on behalf of the accused that the accused took the cheque from the beeru (almirah) and thereafter, the accused took the signature of the complainant''s sister in the cheque book. The witness has further stated that, even before the police, he had staled that the accused took the money from his pant pocket and produced it.

P.W.3 is the shadow witness and he has also deposed in tune with the evidence of P.W.4. Insofar as the trap is concerned, the shadow witness has stated in his evidence that he went to the office of the accused along with the complainant and on seeing them, the accused asked the complainant whether the amount has been brought and on being told in the affirmative, the complainant took out the money and gave it to the accused and the accused, after receiving the same, put it into his pant pocket.

Thereafter, signal was given to the Lokayuktha police who came and caught hold of the hands of the accused and the hands, when immersed in the chemical solution the solution turned into pink colour and even the pant pocket wash was also collected, which also turned into pink colour and Ex.P-3 is the mahazar that was conducted in respect of these events. In the cross-examination of P.W. 3 also, the accused has got the whole incident confirmed inasmuch as P.W. 3 has deposed even during cross-examination on behalf of the accused that the accused received the money first and then gave the cheque and the cheque was also taken out by the accused from the beeru (almirah). The witness has confirmed that even before the police he has stated that the accused took the amount first before issuing the cheque.

Thus, a close look at the evidence of P.Ws. 3 and 4 reveals that two witness have corroborated each other in material particulars with regard to the demand made by the accused and the acceptance of the bribe amount by the accused from the complainant. The hand wash and the pocket wash of the accused has confirmed the money being found in possession of the accused. When questioned by the I.O. during the course of recording of the trap mabazar Ex.P-3, the accused did not come out with any plausible explanation but, on the other hand, his reply immediately after the trap was that, when he had been caught by the police with the bribe amount in the hand and the hands also having been washed, there is nothing else for the accused to give in writing and with this explanation, the accused refused to give anything in writing.

Thus, the evidence of P.W. 4 complainant corroborated by P.W. 3 shadow witness and the explanations given by the accused during trap mahazer Ex. P-3, all go to indicate that the accused has not denied the prosecution case insofar as the demand made by the accused and accepting Rs. 4,500/- from the complainant. The very explanation offered by the accused to the I.O. during the trap mahazar Ex.P-3 itself indicates that the accused has not denied the prosecution version as placed before the trial court through the testimony of P.W. 4 complainant and P.W. 3 shadow witness.

Coming to the defects noticed by the trial court, no doubt Chinnathayamma was not examined and likewise, the Land Acquisition Officer and the Manager of the office of the accused were also not examined. Non-examination of these witnesses, in my view, is not fatal to the prosecution case since the prosecution has brought home the guilt of the accused through the testimony of P.Ws.3 and 4 and the very explanation offered by the accused himself. No doubt, as rightly submitted by the learned counsel for the appellant, the prosecution could have examined Chinnathayamma, the Land Acquisition Officer, or the Manager. But, the said lapse on the part of the prosecution cannot be blown out of proportion so as to reject the convincing and trustworthy testimony of P.Ws. 3 and 4.

In this connection, with regard to the defects in the prosecution case, it would be proper to refer to the law laid down by the Apex Court in the case of Dhanaj Singh Vs. State of Punjab, reported in 2004 SCC (Cri) 851. In the said case, the Apex Court has held that, mere lapses in the investigation itself cannot be a ground to reject the prosecution case unless the defects go to the root of the matter. The Apex Court went on to observe in the said case that, an accused cannot be acquitted solely on the ground of the defect in the investigation and went on to observe that even though in the case before it, many persons, who could have thrown light on the incident, had not been examined or for that matter, the weapons were not sent for examination, these defects would only put to court on guard and the court will have to be circumspect in evaluating the evidence. Therefore, it was held by the Apex Court that the defects in the investigation pales into insignificance when the ocular testimony is found credible and cogent.

In view of the aforesaid position in law with regard to the defects in the prosecution case, in the instant case, as the evidence of P.Ws.3 and 4 had not been seriously questioned in the cross-examination and the two witnesses fully corroborate each other in material aspects and the explanation given by the accused also adding to the weight of the evidence of these two witnesses, the learned trial judge was not justified in giving undue importance to the non-examination of certain persons. In fact, it can be said that the non-examination of some of the persons has been made a big issue and in the process, the trial court lost sight of the evidence of P.Ws.3 and 4.

For the above reasons, the judgment of acquittal of the trial court suffers from the infirmities which have been stated by the Apex Court in the case referred to by me at the beginning while dealing with the scope of interference by the appellate court against the orders of acquittal. As such, the judgment of acquittal passed by the trial court cannot be sustained in law. Consequently, the respondent is convicted for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C. Act.

I have heard learned counsel for the appellant-Lokayuktha Shri Rajendra Reddy and also learned senior counsel Shri M.S. Rajendra Prasad for the respondent-accused on the question of sentence.

The learned counsel for the respondent-accused submitted that almost 12 years have elapsed since the incident and further, the respondent is now a senior citizen and has retired from service and, therefore, lenient view may be taken. On the other hand, learned counsel for the appellant-Lokayuktha submitted that the minimum sentence is one year in respect of Section 13(2) of the P.C. Act and, therefore, the court may consider imposing the sentence having regard 10 the punishment prescribed for the offences punishable under Sections 7 and 13(2) of the P.C. Act.

Taking note of the aforesaid submissions, the following order is passed:

The appeal filed by the Lokayuktha. Mysore, is allowed. The judgment of acquittal passed by the trial court is set aside.

The respondent is convicted for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C. Act.

In respect of the conviction u/s 7 of the P.C. Act, the respondent is sentenced to undergo six months imprisonment and shall also pay fine of Rs. 5,000/- and in default of payment of fine, he shall undergo further S.I. for two months.

As far as conviction u/s 13(1)(d) read with 13(2) of the P.C. Act is concerned, the respondent is sentenced to undergo S.I. for a period of one year and shall also pay fine of Rs. 5,000/- and in default of payment of fine, to undergo further S.I. for two months.

The sentences awarded shall run concurrently and the respondent is entitled to set off as per Section 428 of the Cr. P.C. If fine amount is recovered, half of it shall be paid to the complainant as compensation. The respondent shall surrender before the trial court within eight weeks but not later than 21.9.2011 to undergo the sentences imposed against him and the trial court shall also take necessary steps to ensure that the respondent undergoes the sentences imposed upon him.