State of Karnataka vs Parameshwar Tole

B.V. Pinto, J.—This appeal is filed by the Lokayukta challenging the judgment dated 10.07.2009 passed by the Principal Sessions and Special Judge, Gulbarga, in Special Case No. 85/2008 acquitting the respondent/accused of the offences under sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short ''PC Act''). It is the case of the prosecution that the accused being a First Division Assistant in Sub Treasury of Jewargi, on 28.03.2007 at about 1:45 p.m. demanded illegal gratification of Rs. 1,000/- as reward rather than legal remuneration for issuing arrears of cheque amounting to Rs. 9,397/- belonging to the complainant, thereby he is alleged to have committed misconduct as defined under Sections 7 and 13(1)(d) of P.C. Act, thereby he is charged for having committed the offence u/s 13(2) of PC Act.

The prosecution in order to prove the case against the accused has examined in all 9 witnesses and got marked Exs. P1 to P14 and produced MOs. 1 to 9. The defence of the accused is one of total denial. It is his case that the complainant had taken a loan of Rs. 1,000/- earlier to the date of incident and on the date of incident he has returned the said amount and immediately thereafter a trap was laid on him and he was prosecuted for the said offences. The trial Court after considering the evidence of prosecution witnesses and the defence held that the prosecution has not proved the case against the respondent beyond reasonable doubt and acquitted him of the charges leveled against him. It is this judgment of acquittal, which has been challenged by the State in this appeal.

The proceedings in this case has commenced with the filing of complaint by one Hanmantappa approaching the Inspector of Lokayukta, Gulbarga, on 28.03.2007 with a typed complaint marked as Ex. P. 6. In the said complaint, it is stated by the complainant that he was working as an Assistant Teacher in Kakntagi village of Jewargi taluk and had retired in March 2003. As per the notification of the Government he was due to be paid arrears for 20 years till April 2003 as special payment and in this connection he came to know that he has to approach to the Block Education Office, Jewargi. Accordingly he went and contacted the said Officer and bill for Rs. 9,397/- was prepared in his favour and the same was forwarded to the Sub Treasury Office, Jewargi on 15.03.2007. Thereafter he had visited the Sub Treasury office and contacted one Parameshwar Tole, who was concerned clerk in the office. The said Parameshwar Tole demanded a sum of Rs. 1,000/- as bribe for passing the bill. Complainant informed him that he is a retired teacher and that he is unable to pay that amount and requested him repeatedly to pass the bill. However, accused did not heed to his request and insisted for payment of Rs. 1,000/- and only on such payment the accused informed that he would get the bill passed and would give the cheque to him. Since the complainant did not want to pay any bribe, he had promised to come again, but he approached the Lokayukta with the cash amount of Rs. 1,000/- to be paid as bribe to the clerk Parameshwar Tole in the office of the Sub Treasury Officer, Jewargi. The Inspector of Lokayukta on receipt of the above complaint at about 10:15 a.m. on 28.03.2007 registered the same as Crime No. 3/2007 for the offences under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act and transmitted the FIR to the jurisdictional Court. The Inspector thereafter prepared an entrustment mahazar, after summoning two witnesses namely Chandrashekar and Rajshekar. Thereafter a trap was laid in the office of Sub Treasury, Jewargi on the same day. Before so doing the notes which were brought by the complainant were dipped in phenolphthalem powder and were entrusted in the custody of the complainant with instructions to hand over the said money to the accused only if he demands the same P.W. 3 Chandrashekhar was then assigned the work of being the shadow witness and to follow P.W. 2 complainant to the office of the accused and to be present and watch the proceedings when complainant approaches the accused. Accordingly, it is the case of the prosecution that both complainant and P.W. 3 went to Jewargi along with the Inspector of Police P.W. 9 Chandrakant. When P.W. 2 entered the office of the accused, the accused demanded the amount claimed by him from complainant and thereafter the complainant handed over a sum of Rs. 1,000/- to the accused. The accused informed him that he would pass the bill then and there itself and received the amount in his left hand, counted the same in his right hand and kept in the shirt pocket near his chest. Complainant thereafter came out and gave the pre-instructed signal, whereupon P.W. 9 along with P.W. 4 came; inside the office of the accused and hereafter the Inspector washed the hands of the accused in sodium carbonate solution and thereafter directed the accused to remove the money from the pocket received from the complainant. Accordingly, the accused took out the money from his pocket and produced the same before the Inspector. Thereafter the Inspector again washed the right hand of the accused in the sodium carbonate solution, which turned into pink colour. Thereafter the recovered notes were compared with the entrustment mahazar and the numbers were found to be tallying with the notes entrusted to the complainant at the time of preparation of entrustment mahazar. Thereafter panchanama was prepared in the office of the accused as per Ex. P. 8. Both P.W. 3 Chandrashekar, P.W. 4 Rajashekar are the signatory of the Ex. P. 8 the seizure panchanama. The entire procedure of drawing the panchanama has been photographed, the photographs are produced by the prosecution before the Court. After returning to the office P.W. 9 continued the investigation and after obtaining sanction from P.W. 7 Smt. G. Satyavati, who was the Sanctioning Authority, the chargesheet was laid against the accused by P.W. 8.

During the trial, P.W. 1 who is the Gazetted Officer has stated that he is working in the Sub Treasury Office in Jewargi and that accused was working as a FDA in the said office. He has issued certain documents at the request of the Investigation Officer. P.W. 2 Hanmantappa is the complainant. He has spoken regarding his complaint while deposing before the Court. He has also identified his complaint as per Ex. P. 6 and the notes as per MO. 1, which were entrusted to him as per entrustment mahazar. In the cross-examination it is suggested to P.W. 1 that he had taken a hand loan of Rs. 1,000/- from the accused and that on the date of incident, he had come to return the said amount to the accused. These suggestions have been denied by P.W. 2. It is also suggested to P.W. 2 that accused has not demanded the amount of Rs. 1,000/-. However, the said suggestion has been denied by P.W. 2.

P.W. 3 Chandrashekar is the shadow witness. He has stated that on the date of incident he had been to the office of the Lokayukta, Gulbarga and he is the signatory to Ex. P. 7 entrustment mahazar. He has also stated that he had accompanied the complainant P.W. 2 to the office of the Sub Treasury, Jewargi. However, he has stated in his evidence that complainant alone went inside the office of the accused, gave the money and came out. Thereafter complainant came out and gave the signal and after that Lokayukta Police went inside the office of the accused, washed right hand of the accused and the solution of washing right hand turned into pink colour. Thereafter materials are sealed and packed. He has also stated that accused took out the money from his pocket and kept on his table, which was seized by police. In the cross-examination it is elicited that on entering the office of the accused, accused informed the Inspector that complainant had taken a loan from him and said amount has been returned by him and the same was taken out by him from his pocket.

P.W. 4 Rajashekhar is a co-panch. He has stated regarding his presence along with P.W. 9 the Inspector of Police at the time of preparing seizure panchanama. P.W. 5 Somashekar is the Head Constable in the office of Lokayukta. He has also stated that he was present during the raid, so also at the time of preparing entrustment mahazar. His evidence is similar to that of P.W. 4. P.W. 6 is the Junior Engineer, who has prepared the sketch of the scene of occurrence. P.W. 7 was the Director of State Treasury during the relevant period and sanctioning authority. She has issued sanction order as per Ex. P. 11 to prosecute the accused. P.W. 8 Mahaswaragowda has filed the chargesheet in this case. P.W. 9 Chandrakant is the Inspector of Police who had received the complaint registered the case, prepared the entrustment mahazar, laid the trap, further recorded the statements of witnesses, conducted investigation and finally handed over further investigation to P.W. 8.

It is from the evidence of the above prosecution witnesses that the learned Special Judge has acquitted the accused, which order is challenged in this appeal.

Heard Sri A. Syed Habeeb, learned Special PP for the Lokayukta and Sri Baburao Mangane and Sri Ashok Mulge, learned counsel appearing for the respondent.

Learned counsel for the appellant submits that in this case there is absolutely no dispute that the amount was received by the accused on the date of incident. It is also not disputed that though originally certain objections were raised regarding the bill the same were complied with and the bill was ready for payment. However, the same was not forwarded for passing the bill since the accused was waiting for the amount to be paid as bribe. He submits that this fact has been corroborated by the evidence of P.W. 7. Satyavati who has stated before the Court that in spite of complying with all the objections raised for passing the bill, the same was lying the office without being attended by the accused. It is also his submission that the case of the accused that the complainant himself had taken some loan is not probable because complainant had gone to the office only once and the accused would not have lent such huge money to the complainant. Hence, he submits that the prosecution had proved the case against the accused beyond reasonable doubt and that accused deserves to be convicted. Hence, he submits that appeal may be allowed.

Learned Public Prosecutor has relied on the ruling reported in B. Noha Vs. State of Kerala and Another, . which states as follows:

A. Prevention of Corruption Act, 1988, Secs. 7 and 13(1)(d) r/w Sec. 13(2)-Direct evidence - Voluntary and conscious acceptance of money - When proved - No further burden cast on prosecution to prove by direct evidence - Appellant, accused was Health Inspector - Earlier the officials of municipal corporation including the accused removed the push cart belonging to P.W. 1-Accused demanded and accepted a sum of Rs. 200/- for release of the push cart - He further demanded a sum of Rs. 200/- from P.W. 1 then he went to the office of Deputy Superintendent of Police and gave first information statement - Trap was arranged - Statement of accused that P.W. 1 forcibly put the money into his pocket - Trial Court convicted and sentenced-On appeal, High Court confirmed the conviction-Hence this appeal-Evidence clearly shows as to why the illegal gratification was demanded and accepted-Amount was received by accused burden on him to establish that it was not by way of illegal gratification-Burden not discharged by the accused-Appeal dismissed.

He has also relied on the judgment reported in Narendra Champaklal Trivedi Vs. State of Gujarat, .

Sri Baburao Mangane, learned counsel for the respondent on the other hand submits that the trial Court has acquitted the accused on the ground that the shadow witness P.W. 3 has stated that he was standing outside the office and has not seen the accused accepting the bribe amount nor heard the accused demanding the bribe. His evidence is clearly to the effect that only P.W. 2 went inside the office and came out by giving the amount. I Hence, there is no corroboration to the evidence of P.W. 2 regarding demand and acceptance. Even P.W. 2 has not stated in his evidence that P.W. 3 has entered into the office of the accused. The trial Court has also given credence to the defence of the accused that the complainant had taken a loan of Rs. 1,000/- at an earlier date and on the date of trap the complainant had come to repay the said amount to the accused. The trial Court after considering this evidence, which is corroborated by Ex. P. 12, which was given by accused in writing on the date of trap itself, has come to the conclusion that prosecution has not proved the case beyond all reasonable doubt and has acquitted the accused. He has further submitted that this being an appeal against the order of acquittal unless the judgment is perverse or the judgment is not based on the evidence on record, the Appellate Court shall not convert the order of acquittal into one of conviction. Hence, he submits that appeal may be dismissed.

I have carefully scrutinized the evidence on record and also given careful thought to the submission made at Bar. It is clear from the evidence of the prosecution witnesses that immediately after the trap the accused had given a statement to the Inspector of Police which is marked as Ex. P. 12. In the said submission accused had stated that complainant had requested him to lend him a sum of Rs. 1,000/- and that he had given the same to the complainant. He had given the said amount because the complainant had come from some other village and on humanitarian consideration he had given amount to the complainant and when complainant came back to repay the said amount, he (accused) took the same back from him. He has specifically stated in Ex. P. 12 that he has not taken any bribe amount and that he is innocent.

The defence of the accused is consistent in this case. The trial Court has held that there is no corroboration to the evidence of P.W. 2 in so far as demand and acceptance of bribe amount is concerned, since P.W. 3 never entered the office of the accused at the time when bribe amount was handed over. This fact is further corroborated by the fact that though the prosecution case is that immediately after P.W. 9 entered the office of the accused after the trap, the right hand of the accused was washed in the sodium carbonate solution and thereafter he was asked to remove the notes from his pocket whereas the evidence of P.W. 3 Rajshekhar is that when himself and Inspector entered into the office of the accused, Inspector asked the accused to remove the money and the accused removed the money from his shirt pocket and thereafter right hand of the accused was dipped into sodium carbonate solution. In view of this evidence of P.Ws. 2 and 3 there is discrepancy in the narration of events in the evidence of P.Ws. 2 and 3 who are the only witnesses for demand and acceptance of bribe by the accused from the P.W. 2.

The trial Court after considering this part of evidence has given benefit of doubt to the accused holding that the prosecution has not proved the case against the accused beyond all reasonable doubt. This is an appeal against the order of acquittal. It is a settled principle of law that in an appeal against acquittal, the Appellate Court will not replace its views and convert an order of acquittal into one of conviction, unless the judgment is perverse or the same is not based on the evidence of record or is contrary to settled principles of law. There being no such material in this appeal merely because two views are possible; the Appellate Court cannot replace its own view to one taken by the Trial Court and venture to reverse the order of acquittal into one of conviction. On thorough consideration entire materials on record, I do not find any such good ground to interfere with the well considered order passed by the trial Court and therefore this appeal is liable to be dismissed.

Accordingly, the appeal is dismissed.