H.C. Anjaneya vs State of Karnataka

Anand Byrareddy, J.—This is an appeal against conviction for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The case of the prosecution was that the accused who was working as a Superintendent, Karnataka Government Insurance Department, Mysore, had demanded a bribe of Rs. 300/- from the complainant, one J. Jayaram, a Group-D employee working in the Maharam Women''s College, in order to do an official act, namely, to recommend the sanctioning of the maximum permissible loan under the policy of the Department. It transpires the complainant had made an application in this regard.

On the demand for illegal gratification, the complainant had approached the Lokayukta Police on 8.1.1998 and lodged a complaint in this regard. After having registered a case, the Police had made elaborate preparations of securing two panch witnesses and after going through the drill of preparing for a trap and drawing up a mahazar as regards the tainting of currency notes with phenolphthalein powder and instructing the complainant and the shadow witness of the manner in which the trap would be carried out, the entire team, consisting of the complainant, the witnesses and the Police having proceeded to the work place of the accused, the complainant and the shadow witness are said to have met the accused and when the demand was made for the bribe amount, the tainted currency notes having been handed over and immediately thereafter, the waiting police are said to have swooped on the accused, on a signal from the complainant and apprehended the accused and then had gone through the exercise of washing the hands of the accused in sodium carbonate solution to establish that he had handled the tainted currency notes. The currency notes also having been recovered from the accused, the Police after having drawn up a mahazar of the seizure, further steps were taken and the accused was ultimately charge sheeted.

The trial court having framed the charges against the accused, he had pleaded not guilty and claimed to be tried. The prosecution had then examined four witnesses and marked twelve documents and eleven material objects. The statement of the accused u/s 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''Cr.P.C., for brevity), was recorded and after hearing the prosecution and the accused, had found the appellant guilty and had convicted the appellant imposing the punishment of simple imprisonment for one year and to pay a fine of Rs. 5,000/- for the offence punishable u/s 7 of the PC Act and to undergo simple imprisonment for two years and to pay a fine of Rs. 10,000/- insofar as the offence punishable under Sections 13(1)(d) read with Section 13(2) of the PC Act.

It is that which is under challenge in this appeal.

The learned Senior Advocate, Shri C.H. Jadhav, appearing for the counsel for the appellant would contend that the judgment of the court below would need to be set aside for the following among other reasons. That the trial could not have accepted the evidence of PW-2, the complainant, to the effect that he met the appellant several times from 7.12.1997 onwards with regard to his pending application When the said statement could not be reconciled with his further statement in the course of cross-examination that it was for the first time that he had met the appellant on 27.12.1997.

It was also pertinent that the trial court had ignored yet another curious admitted circumstance. In that, the complainant had categorically state that he had submitted a hand written complaint and thereafter a-type written complaint, marked as Ex. P.4, in the absence of the handwritten complaint being produced before the court, and if the same was the basis on which the trap was conducted followed by the prosecution, the entire proceedings are vitiated.

It is contended that the written explanation of the appellant having been admitted in evidence, the same is hit by Section 162 of the Cr.P.C., and the trial court could not have held against the appellant on that basis.

It is also contended that the trial court was not justified in treating a question posed in cross-examination as a suggestion as seen from paragraph 13 of the judgment, and on that premise to treat the answer given by PW-2 as an admission made by the appellant. This reasoning is directly in conflict with the ratio of a decision of a Division bench of this court in the case of Parameshwari Bai v. Muthoji Rao Scindia AIR 1981 Karnataka 10.

It is contended that the court below was not justified in concluding that the appellant was holding the file Ex. P.2, on the date of the trap, merely because he had handed over the same to the police after the trap. In this context the trial court has rejected his written explanation, Ex. P.6, wherein he had stated that he had sent the file to the District Insurance Officer for issuance of cheque on 29.12.1997 itself - while at the same time the very same Ex. P6 is relied upon in respect of other statements to negate the case of the appellant. It is contended that there was no independent evidence to hold that the appellant had continued possession of the file Ex P-2. The non-examination of the case worker, Smt. Sowbagya and the District Insurance Officer, whose evidence would have enabled the court to arrive at a definite conclusion.

It is contended that the court has not appreciated the circumstance that, the appellant had been exonerated of the very charges in a domestic enquiry and that the same had attained finality. The law in this regard as laid down in A.A. Rajya v. State of Bihar, 1996 (2) Cri 234, V.B. Raikar Vs. State of Karnataka, and in Radheshyam Kejriwal Vs. State of West Bengal and Another, It was also to be noticed that the witnesses examined at the domestic enquiry and the witnesses examined at the trial had given completely different versions which is glossed over by the trial court.

The learned Senior Advocate would contend that in view of the above infirmities, the appellant ought to be acquitted, as the prosecution could not be said to have established the case beyond all reasonable doubt.

The learned Special Public Prosecutor seeks to justify the findings of the trial court. While considering the several contentions raised- it is necessary to notice that the appellant had earlier approached this court against the judgment of conviction by the trial court in Criminal Appeal No. 840/2006. The said appeal was allowed and the matter was remanded with a direction to the trial court to permit the appellant to tender evidence. The appellant had tendered evidence and had produced Exhibits -D.1 to D5. Of the said evidence produced, Exhibit D.5 in particular, was relevant. It was the enquiry proceedings and report pertaining to the domestic enquiry conducted against the appellant in respect of the self same charges of graft having been demanded and received from the complainant in exchange for an official favour. This was totally in favour of the appellant. There were statements made at that enquiry by the same Investigating Officer which were totally contradictory to the statements made by him at the trial. There were also inconsistent statements made by other witnesses, which was also highlighted. This was significant and could not be ignored. The prosecution having been forewarned of the infirmities that had resulted in the charges against the appellant not having been able to prove the case against the appellant even on a preponderance of probabilities, it hardly be said that the same was proved beyond all reasonable doubt, if not for the course correction by the several witnesses, including the Investigating officer in strengthening the loose ends at the trial, in their parroted testimony. This aspect of the matter has not at all been appreciated by the trial court. On the other hand the trial court has made short shrift of the inconsistencies that were replete- the reasoning of the trial court in this regard is illustrative:

...It is further important to note that the accused has produced the copy of the Report of the Departmental Enquiry i.e., preponderance of probability and even at the time of filing his statement u/s 313 of Cr.P.C., and my predecessor also made an observation regarding the accused ahs been exonerated in the Departmental Enquiry. No doubt, the standard of proof in a Departmental Enquiry does not establish as a standard of proof before the criminal court for proof of charge....However, merely the accused has been exonerated of all the charges levelled against him in the Departmental Enquiry, it cannot be said that the accused has to be acquitted in the case. Here, it ahs to be noted that all depends upon the facts and circumstances and in the case on hand, I have already pointed out that the witness on oath firmly stated before the Court that there was a demand and acceptance of the bribe money and even the minor discrepancy in the evidence of the prosecution witnesses before the departmental enquiry and also before this court will not take away the case of the prosecution and the Court has to examine the material before the court and if the evidence available before the Court is consistent and cogent and corroborates the evidence of each witnesses, I am of the opinion that this Court cannot acquit the accused, only on the ground that in the Departmental Enquiry, the accused was exonerated and the facts and circumstances of the case has to be taken into consideration and also the cogent and consistent evidence also to be taken into consideration and material facts of the case are also to be analysed considering the material on record and a general opinion cannot be formed that the accused was exonerated in the Departmental Enquiry and hence, he is entitled for acquittal and the said observation will amounts to miscarriage of justice, when the consistent and cogent evidence is available before the Court. No doubt, the other panch witness has not been examined before this court and the witness of other panch witnesses is not material and the evidence, who has been examined as PW. 3 is none other than shadow witness and his evidence corroborates the evidence of PW. 2 and he categorically says that in his presence only, accused has demanded money and PWs. 2 and 3 categorically says that the accused has received the money and recovery was made at the instance of the accused and Ex. P. 12 - FSL report also confirms that the resultant wash of the hands of the accused that is right hand is positive.

For having taken note of all these, I am of the opinion that the prosecution has proved the charges levelled against the accused beyond all reasonable doubt as such the accused is liable for conviction, in the light of the above discussion. Hence, I answered point Nos. (2) and (3) as affirmative.

The above approach of the trial court has certainly resulted in a miscarriage of justice. It cannot be said that the prosecution had established its case beyond all reasonable doubt.

In the result, the appeal is allowed. The judgment of the trial court is set aside and the accused is acquitted. The fine amount, if any, paid shall be refunded to the appellant.