AI Structured Summary
Not yet generated for this judgment
Judgment
M.F. Saldanha, J.-The State of Karnataka has assailed the order of acquittal recorded in favour of the respondent-accused in C.C. No. 19 of 1994 by the learned Special Judge, Bangalore. The accused who was at the relevant time a Police Constable was arrested on a corruption charge and the allegation against him was that on 4-3-1993 at about 9 a.m. he is alleged to have gone to the residence of one Dr. Sadashivachar who is the complainant, and that he is alleged to have demanded a sum of Rs. 1,000/- from the complainant. It is alleged that the accused is supposed to have told the complainant that he had dealt with stolen property and that he would take action according to law against him and the offer was that if an amount of Rs. 1,000/- were to be paid, that the accused would not take action. The complainant evaded the payment on the ground that he did not have the money and the accused is supposed to have insisted that a sum of Rs. 200/- be paid as this was the transport charge for coming there and an appointment was fixed for 3 p.m. on 8-3-1993 when the complainant was to pay the balance amount. The complainant approached the anti-corruption authorities and a trap was laid. On 8-3-1993, the accused came to collect the money. The amount was paid to him and he was caught with the currency notes which had been specially treated. On completion of the investigation, the accused was charged with having committed offences under Sections 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act, 1988. It is very necessary for me to briefly record the defence taken in this case which is extremely interesting. The complainant is a medical practitioner and the accused contends that he had been suffering from a skin trouble for a long time and that he had been treated by the accused who charged him Rs. 2,000/- for the treatment. He states that despite the treatment, there was no improvement in the condition and that therefore, he went to the complainant and demanded his money back. According to him, the complainant had promised to make the payment on 8-3-1993 at 3 p.m. which was why he went there. It is his case that the complainant has falsely implicated him only because of the fact that there was an unpleasant incident when he had demanded the money back and they almost came to blows. The learned Trial Judge held that the charge has not been proved by the prosecution and at the same time, that the defence pleaded appears to be plausible and consequently acquitted the accused. It is against this order that the present appeal has been directed. Since the accused had not appeared despite notice, this Court appointed learned Advocate Sri Mallikarjun Mylar as Amicus Curiae.
At the hearing of the appeal, I have reconsidered the evidence that is on record and heard the learned Additional State Public Prosecutor, Sri S.S. Koti and the learned Advocate who has been appointed as Amicus Curiae on behalf of the accused. Mr. Koti relied on the evidence of the complainant, the neighbour and the landlord both of whom live in the vicinity in order to establish that the first incident had taken place on 4-3-1993 when the demand was originally made. It is true that the complainant has alleged that an amount of Rs. 5,000/- was originally demanded him which figure was ultimately settled at Rs. 1,000/-. He contends that the accused was forcibly dragging him to the police station and in order to exonerate him from the false allegations which the accused was threatening him with, that he agreed to pay the sum of Rs. 1,000/-. He denies that the accused had been his patient or that he had charged him Rs. 2,000/- for treating him for the skin problem. The supporting witnesses do corroborate the complainant to the extent that some unpleasant incident had taken place on that day but their evidence is vague as far as the material aspects are concerned. Even as far as the complainant goes, he was very vaguely worded with regard to what precisely the accused had demanded from him and secondly, as to whether or not there was any justification in the charge that he had purchased valuable stolen property such as a T.V. and a V.C.R. Also, it has been pointed out to me with some justification, that there are variations between the version set out in the complaint and what has been deposed to before the Court and this is the principal reason why the learned Trial Judge has expressed reluctance in the matter of relying on this evidence.
Even though the learned Additional State Public Prosecutor has vehemently submitted that the doctor''s evidence is fully corroborated by the evidence of the other two witnesses, what I need to take note of is the fact that the complainant is most certainly holding something back from the Court. Even if the complainant had dealt with stolen property and the accused sought to blackmail him about this incident and extort money from him, there would have been no difficulty about holding the accused guilty on a corruption charge because those ingredients would have been satisfied irrespective of the complainant''s conduct. What creates a degree of doubt as far as the complainant''s evidence is concerned is the fact that in the first instance, as pointed out by the respondent''s learned Advocate, he appears to be posing as a doctor but there is something dubious about him insofar as he does not even have registration certificate. In addition to this, the prosecution itself has not produced any material before the Court to indicate that some investigation was in progress in the course of which an offence of theft or dealing with stolen property came to the notice of the Investigating Officer, that the name of the complainant transpired and that therefore, it was decided to investigate about his culpability in the case. On the complexion of the present prosecution, this material was absolutely essential as it would have fully established the correctness of the complainant''s allegation. Even though as many as four police officers have been examined, the prosecution has not led this vital evidence and inevitably, on a crucial aspect of the case if the vital evidence is not forthcoming, then an adverse inference would have to be drawn by the Court. In totality therefore, it would be impossible to attach the level of credibility to this evidence that is essential to sustain a corruption charge.
As far as the main aspect of the case goes, the accused does not disputes having visited the doctor''s residence on 8-3-1993 and having accepted the amount of Rs. 1,000/-. I find it a little curious because the complainant contends, that the initial demand was for Rs. 5,000/- which came down to Rs. 3,000/- and was settled for Rs. 1,000/-. He got away on 4-3-1993 by stating that he did not have the money and has paid Rs. 200/- only. In this background, the balance works out to Rs. 800/- and not to Rs. 1,000/- and the complainant does not clarify why he handedover Rs. 1,000/- to the accused. It is these aspects of the case that again create serious suspicion with regard to the true character of the transactions and understandings between the parties. On the other hand, it is a requirement under corruption law that where the receipt of money has been established, that the onus shifts to the accused to prove not beyond reasonable doubt but through preponderance of probability that the receipt of the amount did not constitute an offence in the reverse direction. Therefore, it is necessary for the Court to examine as to whether this burden had been discharged by the accused.
This is a case in which four defence witnesses had been examined. D.Ws. 1 and 2 have deposed to the effect that they had taken the accused to the complainant who is a doctor in connection with his skin trouble and that the doctor had treated him and charged Rs. 2,000/-. In this background, we have the evidence of the accused himself who has stated on oath that he had a skin problem for a long time, that his friends had taken him to the complainant who prescribed some treatment and charged him Rs. 2,000/- but that the treatment was ineffective. He has boldly stated that the accused had demanded his money back from the complainant, that there was a physical altercation between them when the neighbours came there and that in their presence the complainant agreed to repay Rs. 1,000/- on 8-3-1993 and that he parted with a sum of Rs. 200/- on the spot to cover the transport charges. These three witnesses have been cross-examined and nothing appreciable has appeared on record nor has their evidence been discredited. We find total corroboration to this evidence from the deposition of D.W. 4-Dr. Srinivas who is a Medical Officer at the Government Dispensary. He has stated that the accused has a long history of skin problem and that the accused was under treatment even at that point of time. It is really in this background of the defence evidence that the learned Trial Judge has held that the defence pleaded is plausible and in my considered view, this conclusion is faultless. It is true that the learned Additional State Public Prosecutor vehemently argued before me that it may be that the accused has a long history of skin disease and that he has tried to take advantage of it by building a defence around that. I need to add here that there does appear to be more credibility in this case in the defence version rather than the other side because if the accused who was a Police Constable had gone to apprehended the complainant and decided to make a deal with him, he would never have done all this in the presence of third parties i.e., friends and neighbours who are residing around there. The accused was holding a small job of police Constable and if he tried to indulge in a corrupt practice and that too by using force, the chances of his having got away with this against a doctor and other persons from the locality who came there is absolutely remote. The prosecution has also failed to establish any such investigation that was in progress which was absolutely vital and in the absence thereof, the entire charge gets shrouded in suspicion.
I need to record another aspect of the law particularly since this is a corruption case. If the complainant''s version that the accused who was a Police Constable tried to extort money from him in order not to involve him in the offence of dealing with stolen property was acceptable, it could never have been argued that at the highest it was an attempt to extort and not a corrupt practice. The accused was a public servant and if he had misused his position in order to show favour i.e., that despite the commission of a criminal offence he was willing not to press the charges if he would pay money, then a clear-cut corruption offence would have been established. Unfortunately, the evidence is not of the requisite calibre and quality to sustain the charges.
More importantly, this is one of the few cases in which as indicated by me earlier, the prosecution version itself caste serious doubt and if it is demonstrated to the Court that the complainant is either trying to take advantage of his own wrong or that he is setting up a case that is extremely doubtful, then we are left with an incongruous position whereby it is not a question of condoning a corrupt act by a public servant, because the complainant appears to be a dishonest person who is not coming out with the whole truth; but the actual difficulty arises from the fact that the basic duty of the prosecution which is enjoined upon to establish the charge in the first instance has not been satisfactorily performed. Under the scheme of criminal jurisprudence, it is not the question as to how good or honest the defence version is but even in this class of cases the clear-cut responsibility of establishing the charge beyond reasonable doubt rests heavily with the prosecution. The interesting argument advanced by the learned Additional State Public Prosecutor was that where the accused has admitted the receipt of the money, that the level of responsibility on the prosecution gets diluted. I refuse to accept that argument for the reason that it is not the passing of the money alone that establishes a corruption charge because the grave-men of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount. I have already held that the accused has succeeded in satisfying the Court that there is a strong possibility that the defence pleaded by him is in fact representative of the correct version and it is for this reason that the Courts have always held that the burden of proof which rests with the prosecution can never be either diluted or shifted to the other side.
On a total review of the evidence before me and considering the fact that this is an appeal against acquittal, I see no valid ground on which the well-considered findings of the Trial Court can be interfered with. The order of acquittal would therefore have to be confirmed. The appeal accordingly fails and stands dismissed. The bail bond of the accused to stand cancelled.
The office is directed to pay a sum of Rs. 1,000/- to the learned Advocate Sri Mallikarjun Mylar who has very ably assisted the Court in his capacity as Amicus Curiae Counsel.