Sri G. Parameshwarappa, Peon vs State

V. Jagannathan, J.—The Appellant, who was A-2 in the court below, calls in question his conviction and sentence passed 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. For the first of the offence, the trial court sentenced the Appellant to six months imprisonment and to pay fine of Rs. 3,000/- and in default, to undergo further R.I. for one month. As regards the conviction for the offence u/s 13(1)(d) read with 13(2), the Appellant was sentenced to undergo R.I. for one year and to pay fine of Rs. 5,000/- and in default, to undergo further two months imprisonment.

The case of the prosecution put in a nutshell is that, A-1, the Labour Inspector, Circle-Il, Davanagere, and his peon A-2 i.e., the Appellant herein, demanded illegal gratification of Rs. 200/- from complainant P.W.1 Yashodharappa in order to issue renewal certificate in respect of his tailoring shop. As per the complaint of P.W.1, as the licence had not been renewed by P.W.1 in respect of his tailoring shop, a notice was issued to him and thereafter, on 9.4.1993, A-1 and A-2 came to the shop of P.W.1 and demanded Rs. 400/- to issue the renewal certificate and the amount was brought down to Rs. 200/- later on and the accused came again on 16.4.1993 asking for Rs. 200/- to be given to them for issuing the certificate. As the complainant was not willing to give the bribe amount of Rs. 200/-, he lodged a complaint with the Lokayuktha police on 17.4.1993 as per Ex.P-2.

Thereafter, following the case being registered by P.W.8, Police Inspector of the Lokayuktha office, investigation was taken up and after conducting the entrustment mahazar as per Ex.P-5 on 18.4.1993, the scene was set to trap the accused and accordingly, on 19.4.1993, A-1 and A-2 came on a scooter to the shop of P.W.1. A-1 got down from the scooter and A-2 came to the shop of the complainant and gave the renewal certificate and collected Rs. 200/- from P.W.1 and thereafter, on signal being given by P.W.1, the Lokayuktha police came and caught hold of both the accused. Trap mahazar was drawn as per Ex.P-8. On completion of the investigation, which also included collecting the sanction order as per Ex.P-11, charge sheet was submitted against, the two accused for the offences first above mentioned.

To establish its case, the prosecution led evidence by examining P. Ws.1 to 9 and got marked 13 documents along with 5 M. Os. The accused statement was recorded followed by the accused not leading any evidence. Ex.D-1 was marked on behalf of the accused. The learned trial judge, after appreciating the evidence on record, held that there was no evidence to show that A-1 had demanded the bribe amount or had accepted the same and further, there being no evidence to show that A-1 had authorized A-2, the trial court acquitted A-1. However, evidence was found to be sufficient and convincing to convict A-2, peon in the office of the Labour Inspector, Davanagere, and accordingly, judgment of conviction and sentence was passed against him.

I have heard learned senior counsel Shri M.V. Devaraju for the Appellant and learned Counsel Shri S.G. Rajendra Reddy for the Respondent-Lokayuktha and perused the records of this case.

The learned senior counsel for the Appellant took this Court through the entire material on record and contended that P.W.1, who is the complainant, cannot be trusted as the prosecution itself had treated the said witness hostile because, the complainant, though had alleged in the complaint that A-1 and A-2 together had demanded Rs. 200/- as bribe amount, during the course of the evidence, P.W.1 did not speak about A-1 and, therefore, the witness was treated hostile. As such, the trial court could not have relied upon the evidence of P.W.1.

Apart from the above, it is argued that a careful examination of the entire material on record would go to show that the amount which P.W.1 gave to A-2 was the amount which A-1 had demanded and, therefore, the question of A-2 also demanding Rs. 200/- from the complainant does not arise. Conviction of A-2 cannot be sustained on mere acceptance of the amount by him, without there being any evidence to show that there was demand by A-2 as well. In order to establish this contention the learned senior counsel referred tot he evidence of P.W.1 complainant, P.W.2 shadow witness and P.W.8 I.O. and also made reference to the charge framed by the trial court. It is, therefore, argued that, when the charge is that both the accused demanded Rs. 200/- from the complainant and when A-1 was acquitted by the trial court, it obviously means that A-2 also will have to be acquitted. Referring to the further statement of the complainant, it is submitted that, all that A-2 had desired from P.W.1 was that the complainant will have to stitch a pant and a shirt free of cost. Therefore, this also goes to show that A-2 did not demand Rs. 200/- as bribe amount.

Another submission put forward is that, A-2, being the peon, and the issue of renewal certificate being the work of the Labour Inspector i.e., A-1, the question of any work pending with A-2 also does not arise. To support his contention that P.W.1 cannot be believed, the learned senior counsel for the Appellant referred to the evidence of P.W.8 I.O. and pointed out that the improvements made by P.W.1 in material aspects of the case would render the testimony of P.W.1 untrustworthy. As such, the court below ought to have acquitted A-2 also.

In support of the aforesaid submissions, the learned senior counsel for the Appellant placed reliance on the decisions reported in 2010 AIAR (Cri) 495, State Vs. K.M. Gangadhar, and the judgment rendered by this Court in Criminal Appeal No. 1633/2004. Therefore, the learned senior counsel for the Appellant argued that the evidence on record and the nature of the charge levelled against the accused person would, therefore, give rise to doubt the prosecution case and, as such, A-2 be given the benefit of doubt.

On the other hand, the learned Counsel for the Respondent-Lokayuktha, referring to the evidence of P.W.1 complainant and P.W.2 shadow witness, argued that the said witnesses have clearly deposed about A-2 going to the shop of P.W.1 asking for the amount to be given and receiving the same from P.W.1 and thereafter A-2 being caught and his hands having tested positive on being immersed in the chemical solution and further, A-2 also stating in the course of his 313 statement that the amount was forcibly put into his hands, all would go to show that the prosecution had proved its case against A-2.

As far as A-1 is concerned, he was not present in the shop of the complainant and, as such, on the day of the trap, A-1 did not: make any demand nor accepted any money from the complainant. As regards the contention put forward by the learned senior counsel for the Appellant that. A-2 had accepted the amount on behalf of A-1, the learned Counsel for the Respondent referred to the provisions contained in Section 7 of the P.C. Act to contend that, even accepting gratification on behalf of any other person would attract Section 7 of the P.C. Act. Therefore, it is argued that, once there is voluntary and conscious acceptance of money by A-2, there is no further burden cast on the prosecution to prove by direct evidence, demand or motive.

In support of the above submissions, reliance is placed on the decision of the Apex Court reported in (2007) 1 SCC (Crl) 711. As such, the judgment of the trial court convicting A-2 is just and proper requiring no interference is the submission made by the learned Counsel for the Respondent-Lokayuktha.

Having thus heard the learned Counsel for the parties, the point for consideration is whether the conviction of A-2 can be sustained in law in the face of the entire material on record.

The amount of Rs. 200/- having been recovered from the possession of A-2 is not in dispute as it is evident from the testimony of P. Ws.1 and 2, supported by the trap mahazar Ex.P-8. But, the crucial question to be answered is whether A-2 had demanded Rs. 200/-from the complainant and pursuant to the said demand, A-2 accepted Rs. 200/- from the complainant. It is settled law that, mere recovery of the amount from the possession of the accused itself will not be sufficient to hold that the prosecution had proved its case. But, the prosecution also will have to establish that the accused had demanded the particular sum from the complainant.

The complaint, Ex.P-2 lodged by P.W.1, is to the effect that both A-1 and A-2 had demanded Rs. 200/- to be paid to them for issuance of the renewal certificate and, in the further statement of the complainant recorded on 17.4.1993 itself, it has been stated by the complainant that the Appellant told the complainant that Rs. 200/- is for the Inspector i.e., A-1, and for A-2, the complainant will have to stitch free of cost a pant and a shirt. P.W.1 has reiterated this version even before the court when he was examined. That amount of Rs. 200/- was meant to be paid to A-1 and not to A-2 is further confirmed by P.W.1 by deposing in his evidence that on 18.4.1993, at about 12.00 noon, A-2 had come to his shop and informed that he had brought the licence and asked for Rs. 200/-, but P.W.1 told him that he does not have the money and this reply was given by the complainant because. A-1 had not come to the shop on that day.

The presence of A-1 is also spoken to by P.W.1 in his evidence by stating that A-2 had come in the scooter of A-1, but A-1 stood outside the shop and only A-2 came to the shop and P.W.1 gave Rs. 200/- to A-2. As P.W.1 did not speak against A-1, the prosecution treated the witness hostile. As far as the presence of one Dada Peer in the shop of P.W.1 when A-2 came there and asked P.W.1 whether the money is ready, it has been brought out from the cross-examination of P.W.8 I.O. that P.W.1 did not make such a statement before the I.O.

Coming to the evidence of P.W.2 shadow witness, though he has also deposed to the effect that A-2 came to the shop of P.W.1 and gave his renewal certificate and then A-2 asked the complainant to give the money and the complainant gave the money to A-2 and, at that time, A-1 also came to the shop and then stood outside the shop, in his evidence, P.W.2 has also stated that, when the Lokayuktha police questioned A-2, A-2 informed them that he had come only to give the certificate and the complainant told that A-2 had accepted the amount on behalf of A-1.

The evidence of P. Ws.1 and 2 and the complainant having been treated hostile by the prosecution and the defence also bringing out from the mouth of P.W.8 that P.W.1 had made material improvements over his statement, therefore, give rise to doubt the veracity of the testimony of P.W.1. This inference is further strengthened by the following material.

The charge levelled against the accused persons as per charge framed by the trial court is that, both A-1 and A-2 demanded Rs. 200/- from the complainant towards issuance of renewal certificate. A plain reading of the charge, therefore, gives the impression that the specific case of the prosecution is that, both A-1 and A-2 had demanded together Rs. 200/- from the complainant. This case of the prosecution has not been established before the trial court and the acquittal of A-1, which is not being challenged by the State, would, therefore, goes to show that the charge that the two accused together demanded Rs. 200/- did not stand proved. Though the learned Counsel for the Respondent contended that, whether any appeal is preferred against the acquittal of A-1 is to be verified, the fact remains that the trial court had acquitted A-1 on the reasoning that there was no evidence indicating that A-1 had demanded and accepted the bribe amount from the complainant.

That A-2 did not demand Rs. 200/- from the complainant is further established from the explanation offered by A-2 during the trap mahazar. Ex.P-8 reveals that, when questioned by the Lokayuktha police, A-2 told them that he did not ask any money and when asked by the complainant whether the amount was less, A-2 said that it. does not matter how much money is there and he then accepted the amount. This also goes to show that if A-2 had demanded Rs. 200/- from the complainant, he would not have replied or given his explanation to the Lokayuktha police immediately after the trap.

Though the learned Counsel for the Respondent relied on the Apex Court decision referred to earlier by him to contend that when it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, the facts and circumstances before the Apex Court are entirely different from the one on hand. This is because, as mentioned earlier, the specific charge as well as the specific case of the prosecution is. that, both A-1 and A-2 together demanded Rs. 200/- from the complainant. This charge has not been established by the prosecution from the nature of the evidence placed before the trial court. Even according to P.W.1, it was A-1, who had demanded Rs. 200/- from him, and A-2 only wanted stitching of a pant and a shirt free of cost.

When such is the nature of the evidence on record, mere recovery of Rs. 200/- from the possession of A-2 itself will not establish the case of the prosecution that both A-1 and A-2 together had demanded Rs. 200/- from the complainant. The decisions referred to by the learned senior counsel for the Appellant apply to the case on hand and, as has been held by the Apex Court in the case of Banarasi Doss v. State of Haryana, reported in 2010 AIAR (Cri) 495, the conviction of an accused cannot be founded on the basis of the inference and the offence should be proved against the accused beyond reasonable doubt, either by direct evidence or even by circumstantial evidence. The prosecution has to lead cogent evidence in that regard. If the aforesaid test is applied to the case on hand, it cannot be said, despite the evidence of P. Ws.1 and 2, that the prosecution had proved its case viz., that A-1 and A-2 together demanded Rs. 200/- from the complainant.

Even in the sanction order Ex.P-11, the stand of the prosecution has been indicated as that the two accused demanded and accepted Rs. 200/- from the complainant.

Thus, when the prosecution has failed to establish that both the accused together demanded and accepted Rs. 200/- from the complainant and the trial court acquits A-1, the conviction of A-2 also, therefore, cannot be sustained in law and, as rightly submitted by the learned senior counsel for the Appellant, this is a case where the benefit of doubt should be given to A-2.

For the aforesaid reasons, this appeal is allowed and the conviction of A-2 and the sentence passed on him by the trial court stand set aside. The Appellant is acquitted by giving him the benefit of doubt. His bail bond shall stand cancelled and the fine amount, if any paid by him, shall be refunded to him.