Thipperudrappa vs The State

L. Narayana Swamy, J.—Case was registered against the appellant in Crime No. 3 of 2006 for the offence punishable u/s 7, 13(1)(''d) read with Section 13(2) of the Prevention of Corruption Act, 1947. The incident, as it is alleged in the complaint, was on 6th March 2006 and on the same date complaint was also made. The crime was committed and was registered as Special Case No. 78 of 2006. The Trial Court, by its order, dated 16th September 2011 has convicted the accused for the offence punishable u/s 7 of the Prevention of Corruption Act, 1947 and sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs. 5,000/-; and in default to pay fine to undergo simple imprisonment for a period of nine months. The accused was also convicted for the offence punishable u/s 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1947 and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs. 10,000/-; and in default to pay fine to undergo simple imprisonment for a period of one year. Challenging the said order, the appellant has preferred this appeal.

The prosecution has proved its case by examining PWs. 1 to 10, of which PW2 is the shadow witness; PW4 is the complainant; PW5 is the mediator; PWs. 7 and 8 are the Investigating Officers and PW9 is the sanctioning authority who has sanctioned to prosecute the appellant for the said offence. Documents have been marked as Exhibits P1 to P29 and MOs 1 to 18.

The learned counsel for the appellant has challenged the order of conviction on the following grounds. He submits that the prosecution has not proved the demand and acceptance of illegal gratification by the accused as on the date of incident, i.e. 4th March 2006. He submits that on 4th March 2006 the accused was not in the office and in order to prove the same Exhibit P6-Attendance Register has been produced, which shows that on 3rd and 4th March it is marked as ''T'' and under the circumstance, the question of demand and acceptance of illegal gratification does not arise and that the Trial Court has lost sight over this. He further submits that there is contradiction in respect of seizure as per the evidence of PW4 and PW2. PW2 is the shadow witness who deposes that after acceptance of the said amount by the accused, upon the signal made by the complainant, the Lokayukta police came and arrested the accused and have seized the money in the canteen. But, contrary to the same, PW4 the complainant, deposes that upon signal to the Lokayukta police, they came to the office and took the accused into custody and recovery has been made and solution test was made in the office and the contradiction is as to whether the seizure was made in the canteen or in the office. The learned counsel submits that the Court below has not examined this aspect also. The learned counsel referred to the evidence of PW4-complainant who in his chief-examination and cross-examination has deposed that the accused person has not made any demand by the complainant and it is only on the instruction of PW5-''mediator, he has paid the amount. PW5 in his chief-examination deposes that he heard from PW4 that the accused has made a demand and he went to the accused and requested him not to demand money from him since the complainant is a poor person. Under the circumstance, the learned counsel submits that iota of demand and acceptance of illegal gratification is not proved by the prosecution. He further submits that by the time the complaint was given, the case of the complainant was already considered by the higher authorities and there was no work pending before him. Under the circumstance, the question of accepting and demanding of illegal greatification does not arise. In support of his submissions, the learned counsel relied upon the judgment of the Hon''ble Supreme Court in the case of State through Inspector of Police, A.P. Vs. K. Narasimhachary, ; and a judgment of this court in Criminal Appeal No. 12 of 2012 between C.B. Nagaraj v. State by Lokayukta Police disposed of 9th July, 2013 and submitted that the case of the complainant was already forwarded to the Head Office and was not pending with him as on the date of the alleged acceptance. In similar circumstance, the Hon''ble Supreme Court held that the accused cannot be convicted for an offence so alleged. The learned counsel also referred to the decision of the Hon''ble Supreme Court in the case of Ganga Kumar Srivastava Vs. The State of Bihar, wherein it has been held that where the alleged work of the complainant is already done or completed before the date of alleged raid, there was no occasion that could be said to be arisen for demanding bribe. The another contradiction highlighted by the learned counsel is in respect of sodium carbonate powder solution. He submits that after the trap, as per the evidence of PW2, the hands of the accused when washed, the solution turned to pink colour; whereas the PW4 deposed that only the solution of right hand turned to pink and washing of the left hand did not change its colour. But, contrary to the same the evidence of PW10, who is the chemical examiner, in his cross-examination has deposed that after wash of both the hands the solution turned to pink colour and this evidence goes contradictory. Under these circumstances, he submits that the prosecution has not proved the case beyond reasonable doubt and prays to allow the appeal and set aside the order of conviction passed by the Court below.

On the contrary, the learned counsel appearing for Lokayukta supports the order of the Trial Court. He read over the evidence of PWs. 2, 4 and 8. PW4 is the complainant who supports the prosecution. PW9 is the sanctioning authority, who has deposed that the accused person was the Scrutinizing Officer who has processed the application filed for sanction of loan. He submits that PW2, PW4 and PW5 have supported the case of the prosecution in respect of the acceptance of illegal gratification and PW2 who is the shadow witness, has deposed that he has seen the accused having received the amount from PW4 the complainant. The learned counsel further submits that recovery has been made by the accused and for recovery PWs 2, 4 and 8 have supported the case of prosecution. Change of colour of phenolphthalein solution after washing the hands, is also supported by both prosecution witness as well as PW10 the Forensic Science Laboratory chemical examiner and also PW9 who is the sanctioning authority supports the prosecution case. All these would prove that the accused has accepted illegal gratification for showing official favour to the complainant. Hence, the learned counsel submits that since material witness and evidence supports the case of prosecution, rightly the Court convicted the accused and there is no reason for interference by this Court.

Heard the learned counsel appearing for the parties. Accused has been charged that while he was working as Backward Class Development Officer, Taluk Panchayat Office, Hospet, the complaint presented an application for sanction of loan of Rs. 35,000/- under ''Shrama Shakti'' scheme. He had approached the accused on 14th February 2006 and requested him to recommend his application for sanction of loan and the accused has demanded Rs. 4,000/- bribe to show him an official favour. Complaint was made on 6th March 2006 to the Lokayukta Office alleging that the accused has made a demand for illegal gratification to do favour in processing his application for sanction of loan amount. On the basis of Exhibit P3, the complaint, entrust panchanama has been drawn, which has been signed by PW4-complainant. The trap team was formed and was instructed as to how they have to act, more particularly with the complainant, and to express the completion of work by giving signal. After seizure and recovery of the amount from the accused, recovery panchanama has been made as per exhibit P7. The amount has been recovered from the possession of the accused and he was subjected to sodium carbonate powder test. His hands were washed in the phenolphthalein solution and it turned to pink colour and the same was referred as material objects 1 to 18. PW9-Sanctioning Authority has sanctioned approval by notification dated 25th August 2006. First Information Report has been marked as Exhibit P23.

The points for my consideration are

(i) Whether the prosecution has proved the case beyond reasonable doubt? and

(ii) Whether the court below has committed an error in convicting the appellant for the offences referred above?

In order to examine the order passed by the trial Court in convicting the accused, I have examined the evidence of PW4 who is the complainant. PW4 in his chief-examination has deposed that he had been to the appellant''s office and enquired about the loan, in turn, he has been told that he would be informed soon after the sanctioning of loan. Further, in his chief-examination, he has deposed that he went along with trap team. Himself and PW5 went inside and invited accused to canteen to have coffee and there PW5 enquired with complainant as to whether he brought the amount to which the complainant said ''yes''. After having coffee, he paid the amount to the accused and the accused put in his right pocket. As per the instructions, he gave a signal to the trap team and they came and took the accused to custody, recovered the amount from his pocket and his hands were washed with phenolphthalein solution and the same turned to pink colour. This evidence of witness that the complainant had paid some amount to the accused and the accused accepted it and then gave signal to the trap team, and the trap team took the accused to custody at the canteen itself and has recovered the amount is to be examined. The sum and substance of his evidence is that amount which has been paid by the complainant and accepted by the accused and recovery of the said amount has been made at canteen. At this stage, the prosecution requested the Court to treat him as hostile. He has deposed that on 4th March 2006, PW5 came to his place and told that if the amount is paid on 6th March 2006, his work would be completed on the same day and further informed as to what has been narrated in the complaint. PW4, in his chief and cross examination, deposes that the accused has accepted the amount and the said amount has been given on the instruction/advise of PW5 in order to get the work done. Here, the evidence of PW4-complainant, does not support the case of prosecution in respect of admit and acceptance of illegal gratification by the accused. The payment made by him to the accused is at the instance of PW5 in order to get the work done on 6th March 2006. PW4 do not support the case of prosecution as to whether the demand was made by the complainant. Further in the cross-examination available at paragraph 17, it is deposed that he had met the accused, and the accused did not make any demand. On the other hand, the PW5-mediator has informed him to pay the said amount and he went to lodge the complaint. May be the Lokayukta police went in order to avoid the incident or in order to satisfy the mediator. This goes to Drove that it is PW5 made PW4 to lodge the complaint and accordingly complaint was given. Hence, it is to be inferred that there is no demand made by the accused.

In the cross-examination he has denied the suggestion made by the prosecution that he had been to Lokayukta police to lodge complaint in respect of the demand made by the accused. He has also denied the suggestion that he never told PW2 that work would be over if the amount is paid to the accused. At this juncture, the evidence of PW4 and PW2 require to be examined in order to find out the contradiction as is submitted by the learned counsel for the appellant. PW2 the shadow witness in his chief-examination at paragraph 11 deposes that he along with PW5-mediator went to Taluk office and there PW5 enquired with him as to whether he has brought the amount of Rs. 1,500/- and the complainant answered in the affirmative and then the accused was called for a coffee and all of them proceeded to canteen. As per his evidence, the trap was made and accused person was taken to custody in Taluk office itself. But, quite contrary to the same, the evidence of PW4 in his examination has deposed that they had been to canteen where the accused has accepted the amount and from there the complainant gave the signal and the trap team which arrived there and took the accused to custody there itself and recovery was made, his hands were washed with phenolphthalein solution which turned into pink colour. The contradiction would be as to whether the accused person has been subjected to washing of hands was either in the office or at the canteen? This contradiction of the complainant goes to show that the prosecution witnesses not support the case of prosecution.

In respect of demand and acceptance of the illegal gratification, it is required to examine the evidence of PW2 who is the shadow witness. The shadow witness who is a practicing Doctor in Primary Health Centre, Hospet, in his chief-examination has reiterated the contents of the entrust mahazar. He has deposed that the accused person has enquired with PW4 whether he has brought the amount of Rs. 1,500/-. Thereafter, accused person has been taken to canteen and there PW4 paid the amount and the same has been accepted by the accused. Except this evidence, there is no evidence available from him about the demand of illegal gratification. Further, in his cross-examination he says that he along PW5 had been to the Taluk Office. However, in his cross-examination he admits that the talks that went between the accused and PW5 was not heard by him and he did not know as to what discussion took place between the accused and PW4. However he has seen the transferring of amount from PW4 to the accused. In view of the evidence of the shadow witness, who is the material witness for the present purpose, it comes out that the acceptance or demand made by the accused has not been witnessed by PW4. He evidence goes along with evidence of PW4 and PW5 and both of them do not make their evidence as to the accused has taken the bribe from the complainant PW4. PW5-mediator has insisted PW4 to pay the said amount in order to get the things done on the same day. On the other hand, PW5, in his evidence has stated that it is PW4 who has informed him for payment of illegal gratification. This contradictory evidence of PW4, PW5 and PW2, if read and understood jointly, it does influence me to accept the case of the prosecution for the purpose of charge.

The submission of the respondent-prosecution that the evidence of PW2 that he had seen the accused receiving the amount from PW4 and after acceptance when the hands of the accused were washed in phenolphthalein solution the same turned into pink colour. PW9 who has sanctioned for prosecution of the accused, has stated that the accused is the Scrutinising Officer for the process of application. The same cannot be accepted for the reason that when the charge is specifically made that the appellant, in order to show official favour to the complainant made a demand and accepted amount from PW4, to that extent there should have been some evidence or any material available in record to show that the sanctioning authority is not the accused instead it is the office at Bangalore and the accused is only a processing person and at the time when the trap was laid, the application of PW4 was not pending with him but was forwarded to the Head Office and also was sanctioned from the higher authorities at Bangalore. Hence, it can be inferred that there was no occasion for the accused to make a demand from the complainant. In this regard, it is useful to refer to the decision of the Hon''ble Supreme Court in the case of NARASIMHACHARY (supra) wherein at paragraphs 21, 22 and 25, it has been observed thus:

"21. It is really curious that when PW-1 handed over the application to PW-4 on 2.3.1994, on the same day his statement as also the statement of his grandmother were recorded and all the documents, namely, Ext. P-2 and P-6 were handed over by him to PW-1 who in turn handed them over to the Respondent. It was at this stage the purported demand was said to have been made. Strangely enough he met the Respondent in the evening of 03.03.1994, although a demand was said to have been made by the Respondent on 02.03.1994 in the office, presumably after office hours and then the amount of gratification was reduced from Rs. 1,000/- to Rs. 600/-. PW-1 did not make any complaint to PW-3 on the said date i.e. 03.03.1994 and even on 04.03.1994, although from the conduct of PW-1 and PW-3, it is evident that they were very close to each other. PW-3 apparently intended to help him out of way. The valuation certificate was sent to PW-3 by the Respondent on 04.03.1994 which was signed by PW-3 on the same day. It was also certified by PW-4. It is wholly unlikely that although his demand was not met, the Respondent would forward his certificate to PW-3. The natural conduct of the Respondent, if he had in fact demanded any amount by way of gratification, would have been to wait for PW-1 to meet his demand.

It is not in dispute that it was PW-4, who was to evaluate the property and it was PW-3 who was to grant the certificate. The Respondent was merely a recommending authority. In the aforementioned situation, the High Court has arrived at the following findings:

"...The evidence on record in this case discloses that Ex. P1 was submitted by PW1 directly to PW3 and it has moved with almost jet speed. The local verification, recording of statements, furnishing of certified copies of revenue record etc., had taken place within one day. The file reached PW3, in all probability on 03.03.1994 and he signed on the next day. PW3 was very much accessible to PW-1. If he sensed and delay or if there were any hindrances, he could have brought the same to the notice of PW. 3 himself. When PW3 received Ex. P1 directly from PW. 1 without any objection, there should not have been any impediment in handing over the Ex. P8 to PW. 1 directly. The accused was neither the issuing authority nor was the outward clerk. He figured somewhere in between. The handing over of Ex. P8 by PW3 to the accused appears to be deliberate and planned. Suggestions to PW3 that he was suspended for certain irregularities on earlier occasion, he bore grudge against the accused and wanted to implicate him gains credence in this regard."

xxx xxx xxx

PW-1 appears to be an influential person. He could approach PW-3 directly. He was in a position to obtain a certificate, copies of various documents from PW-4 on the same day as also obtain a certificate from him on the same day. Thus, as the valuation certificate was sent to PW-3 by the Respondent on 04.03.1994, there does not appear to be any good reason as to why PW-1 would not come to know thereabout. According to him, he came to know that PW-8 was at Cuddapah and be approached him in the early morning at 6.35 on 05.03.1994. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on records would lead to only one conclusion, i.e., the guilt of the accused. The impugned judgment, therefore, is sustained."

In the present case also, by the time PW4 and PW5 met the accused for sanction of loan, the case of PW4 was forwarded to Head Office and was also sanctioned and nothing was pending before the accused for the purpose of consideration. Accordingly, the submission that there was demand and acceptance of illegal gratification by the accused cannot be accepted. The prosecution has not established the motive in laying the trap on the appellant.

The material witnesses in this case are only PWs 2, 4 and 5. I have gone through the evidence of the above witnesses and I find that there is an in-built contradiction in the evidence of all the three witnesses with regard to the demand and acceptance. The place of laying trap and the mode adopted for cleaning the hands of the accused, etc. With regard to the fact PW4 has stated that after washing the right hand the phenolphthalein solution turned to pink colour and the solution did not change its colour after the wash of his left hand, whereas, the PW10 Chemical examine deposes that both the hands after washing turned to pink colour. This contradictory evidence is fatal to the case of the accused.

In view of the same, I find that there is force in the submissions of the learned counsel for the appellant. The prosecution has not proved the case that the accused has demanded and accepted illegal gratification from PW4-complainant. The complainant himself states that the accused has not demanded gratification at any point of time. When the complainant himself does not support the case of the prosecution, I do not find any justification in evaluating the case of the prosecution for the purpose of conviction of the accused by the trial Court. In the light of discussion and the observation made above, I pass the following:

ORDER

Appeal is allowed. The order dated 16th September 2011 passed in Special Case No. 78 of 2006 by the Principal Sessions Judge at Bellary convicting the accused for the offence under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1947 is set aside. Bail bond stands cancelled.