S. Venkatakrishna Gowda vs State of Karnataka

V. Jagannathan, J.—This criminal appeal is by A-1, who alone was convicted by the trial court in respect of the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 10,000/- in respect of conviction u/s 7 of the P.C. Act and to undergo two years rigorous imprisonment and to pay a fine of Rs. 20,000/-in respect of the offences punishable under Sections 13(1)(d) read with 13(2) of the P.C. Act, with default sentences.

The prosecution case in short is that, A-1 to A-4, being employees of A.P.M.C., were attending the work of renewing the licences of traders and it was the duty of A-1 to receive the amounts from the applicants and A-2 to write receipts towards legal fee and A-3 and A-4 to write cash book of the N.S.C. register respectively. Sathyanarayana, Dy.S.P., Lokayuktha, got reliable information that, in the office of the A.P.M.C. at Mysore, the accused persons were collecting bribe amount along with legal fees and the bribe amount ranged from Rs. 500/- to Rs. 800/- and, after getting this information, the said Dy.S.P. (P.W.13) asked police constable Prakash Gowda (P.W.12) and one Krishna Murthy (P.W.2) to go to the office of the A.P.M.C. and accordingly, the said persons went there and at around 3.00 p.m., P.W.13 received telephonic message that 10 to 15 persons are getting the licences renewed and also paying the bribe to the officials and immediately, P.W. 13 went along with other police officials and saw some 10 to 15 persons waiting in the room and they were getting the licences renewed and thereafter, P.W.13 searched the table drawer of A-1 Venkatakrishna and found cash of Rs. 52,920/- and on verifying the bill books produced by A 1 as per bill book Nos. 144 and 145, it was found that the total amount collected towards licences was Rs. 23,808/- and, therefore, the excess amount of Rs. 29,112/- out of the total amount of Rs. 52,920/- was inferred as the bribe amount collected by the accused persons. As the accused did not give any satisfactory explanation, P.W.13 came back after verifying the other documents and lodged his complaint as per Ex.P-41.

Thereafter, investigation proceeded on the expected lines and with the completion of the investigation, charge sheet was submitted. All the four accused were put on trial in respect of the offences first above mentioned. Following the accused denying the charge, to establish its case, the prosecution examined 13 witnesses and got marked 43 documents and cash as per M.O.1 was also produced. The accused statement was recorded and the accused denied the prosecution ease and came up with the defence that the excess amount found in the drawer was towards the N.S.C. of six traders and also included the cash received towards the sale of a book. The accused did not lead any defence evidence.

The learned trial judge, after evidence appreciation, accepted the prosecution case based on the evidence of P.Ws.1, 2 and 13. The other independent witnesses P.Ws.3 to 10 did not support the prosecution case. Despite the independent witnesses not supporting the prosecution case, the learned trial judge accepted the evidence to hold that the guilt of A-1 alone had been established and there was no evidence to connect A-2 to A-4. Accordingly, A-2 to A-4 were acquitted and therefore, this appeal is by A-1.

I have heard learned Counsel Smt. T.M. Gayathri for the Respondent-Lokayuktha and none appeared for the Appellant. In the absence of the Appellant''s counsel being present to present his argument, this Court is left with no other alternative than to hear the arguments of the learned Counsel for the Respondent-Lokayuktha and so lake note of the entire evidence on record. This step is taken by this Court following the law laid down by the Apex Court in the ease of Bani Singh and ohters Vs. State of U.P., , wherein the Apex Court has held thus:

It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the Appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. The plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record.

The learned Counsel for the Respondent-Lokayuktha argued that the conviction of A-1 does not require any interference because, the trial court has taken note of the evidence of P.Ws. 1, 2 and 13 and the accused-Appellant has not disputed the fact of he being found in possession of the excess amount of Rs. 29,112/-. Therefore, nothing more was required for the prosecution to prove and despite that, the evidence of P.Ws.1, 2 and 13 goes to show that the excess amount was found with A-1 and no explanation was forthcoming from A-1. As far as the defence version is concerned the submission made by the learned Counsel is that, the accused has not been able to examine any of the six traders to prove that the excess amount that was found with him was towards the N.S.Cs. As such, the conviction of A-1 is not liable to be interfered with.

In the light of the aforesaid submissions, I have carefully gone through the entire evidence on record. First of all, it will have to be mentioned at the outset that no independent person viz., a person who went to seek his licence renewal, had given any evidence before the trial court to show that, along with the licence fee, he also gave the bribe amount of Rs. 500/-.P.Ws.3 to 10 are the independent witnesses and all that they say was that, they gave only licence fee and nothing more than that. These witnesses, therefore, did not support the prosecution case. With this fact forming the premise, in proceed to examine the other evidence on record.

P.W.1 Udayakumar is the panch witness and he speaks to the entrustment mahazar and also having accompanied P.W.13 to the office of the accused and the excess cash of Rs. 29,112/- being recovered from the accused. Ex.P-1 is the entrustment mahazar spoken to by this witness.

P.W.2 is one Krishnamurthy, who was working as a Second Division Assistant in the Education Department and he has stated that he went along with P.W. 13 to the office of the accused and on verification of the amount found in the drawer of A-1, it was found that, out of 52,912/-, there was excess amount of Rs. 29,112/- and this witness speaks to the receipt books which were recovered as per Exs.P-6 and P-7.

P.W. 13 Sathyanarayana is the complainant-cum-Investigating Officer and so far as his evidence is concerned, this witness has also stated that he went to the office of the accused after getting information from P.W. 12 and on checking the drawer of A-1, he found excess cash of Rs. 29,112/-. The said amount was recovered in the presence of the panchas as per Ex.P-8.

Even if the aforesaid evidence of P.Ws. 1 to 13 is accepted, it only goes to establish that there was excess amount of Rs. 29,112/- found in the drawer of A-1. The explanation offered by the accused in his 313 statement is that, the excess amount of Rs. 29,112/- was towards the N.S.Cs. amount, paid by five traders each being Rs. 5,000/- and one more person paying Rs. 4,000/-, thus totalling Rs. 29,000/- and the balance of Rs 112/-was the amount for having sold a book. The accused has produced the xerox copies of the representation given by the said traders. It is the case of the accused that that the persons who gave Rs. 5,000/- each were Shankar, Ramachandra, Yateesh, Nagesh and Nagashetty, and one Nagaraju gave Rs. 4,000/-, thus totalling Rs. 29,000/--. The trial court did not take note of the N.S.C. register produced and which was marked in evidence as Ex.P-9 but, on the ground that the said register did not bear any signature, the trial court refused to accept the said document Ex.P-9.

No doubt, the accused did not examine any of the aforementioned traders who had given the amount towards the N.S.Cs. But, that does not prevent the prosecution from establishing its case. Though the three witnesses, P.Ws. 1, 2 and 13. speak to the fact of the excess amount being found with A-1, the specific case of the prosecution as per the complaint lodged by P.W. 13 is that, the bribe amount was collected by all the accused persons together. In fact, the charge against them in the complaint is that, A-1, along with A-2, A-3 and A-4, was collecting the fee and the bribe money. The very same evidence has led to the acquittal of all the other accused-2 to 4. But, A-1 only has been convicted because, cash was found in the drawer of A-1, The prosecution has not been able to establish that the bribe amount was received only by A-1 and not by the other accused persons.

There is also no evidence to show that any of the independent traders, who gave the applications for licence renewal, had given the bribe amount on demand by A-1 and A-4 accepted the said amount. There is also no evidence placed by the prosecution to show that, after accepting the bribe amount., the hands of A-1 was immersed in any chemical solution and that solution turned into pink colour. In other words, in the absence of there being any iota of evidence placed so show the receipt of or acceptance of the bribe amount from each one of the traders, merely because there was excess amount in the drawer of A-1, that itself cannot be sufficient to draw the inference that A-1 had accepted the bribe amount. When the complaint is that all the accused persons joined together and collected the bribe amount and the very same evidence has led to the acquittal of A-2 to A-4, the trial court could not have convicted A-1 solely on the ground that the drawer of A-1, on being checked, was found to have excess cash of Rs. 29,112/-.

The explanation offered by A-1. in his 313 statement also cannot be brushed aside because, as per the explanation given by him, he had received Rs. 5,000/ each from five traders and from one person Rs. 4,000/-, thus totalling Rs. 29,000/- and he also sold a book viz., Karnataka Agricultural Produce Control Rules, for Rs. 112/- and along with the excess cash, there were also the applications filed by the traders towards the N.S.Cs. and these; applications were not taken by the Dy.S.P. It is also his statement that the said traders also were present before the Lokayuktha office and stated that they had given the amount, towards the N.S.Cs. but the Dy.S.P. did not agree to their statement nor money was returned to them. Thus, the statement of the accused given by way of reply to question No. 18 also probablises the defence version that the excess amount collected by the accused was towards N.S.Cs. and towards sate of one book for Rs. 112/-.

The said explanation of A-1 cannot be lightly rejected as of no significance because, the standard of proof required on the part of the prosecution is higher than that of the accused and it is sufficient for the accused to show that the prosecution case is not probablised. In other words, the standard of proof required while examining the defence theory or evaluating the defence evidence is one of preponderance of probability and not proof beyond all reasonable doubt.

Therefore, merely on the footing that excess cash was found in the drawer of A-1, he could not have been convicted when the specific case of the prosecution is that all the four accused had collected the fees as well as the bribe amount. When the evidence was found not sufficient to convict A-2 to A-4, I do not see how A-1 could be convicted on the same evidence merely because he happened to be sitting in front of the table and the said table drawer contained the excess cash. In fact, the prosecution itself has admitted before the trial court by filing a memo to the effect that there is no evidence against A-2 to A-4.

In the light of the foregoing analysis of evidence, the trial court ought to have given the benefit of doubt to A-1 instead of convicting him, as there is no positive evidence placed to show that some independent traders had actually given the bribe along with the licence fee.

In the result, the appeal is allowed and the judgment of conviction passed by the trial court is set aside and A-1 is acquitted of the offences with which he stood charged. His bail bond shall stand cancelled and, if any fine amount is deposited, the same shall be refunded to him.