The State vs Mohan Sathu Malagi

Budihal R.B., J.—The judgment and order of acquittal dated 18th February 2013 passed by the IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in Spl. Case No. 66/2011 is challenged in this appeal.

The case of the prosecution is that P.W.3 lodged a complaint as per Ex. P.6 before the Dy. Superintendent of Police, Lokayukta Police, Belgaum, alleging that in the year 2008-09, he got admission for the BBA course in the Government First Grade College at Gokak. As the said course was very tough for him, he failed and because of that reason, he wanted to change his course to BA. degree and when he went to give the application in that regard to the Principal of the College viz., M.S. Malagi, Principal told him that to cancel the BBA course he has to pay Rs. 300 and to admit to BA. I Class, he has to pay Rs. 2,700/-. The complainant verified about the fee in other government colleges and he came to know that for B.A. I Class, the amount was Rs. 794/- and again the complainant went to the Principal of the said college M.S. Malagi and told that he is poor and requested that some how he may be accommodated to study in the said college. Then the principal again said that whatever the amount he has stated was the amount and he cannot reduce it even to a single pie. As the complainant was not interested to pay the bribe amount over and above the fees, he is giving the complaint and requested to take appropriate legal action against the said principal. He also told that the conversation between himself and the principal was recorded by him in the cassette. The said complaint was lodged on 24.06.2009. On the basis of the said complaint, Lokayukta police registered a case in Belgaum Police Station Crime No. 8/2009 for the alleged offence under Sections 7 and 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and issued the FIR as per Ex. P.38.

After conducting and completing the investigation, charge-sheet was filed for the said offences.

To prove its case, the prosecution in all examined 15 witnesses as P.Ws.1 to 15 and marked the documents as Exs. P.1 to P.47 and material objects M.Os.1 to 13. On behalf of the defence, no witnesses were examined nor any documents were produced.

After considering the materials placed before it both oral and documentary, ultimately, the Trial Court acquitted the accused person of the alleged offences. Being aggrieved by the judgment and order of acquittal passed by the Trial Court, the State has come up in appeal before this Court on the grounds as mentioned in the appeal memorandum.

Heard the arguments of the learned standing counsel for the Lokayukta-State and also the arguments of the learned counsel appearing for the respondent/accused.

Learned counsel appearing for the appellant-Lokayukta made the submission that the complainant-P.W.3 earlier was studying in BBA course in the First Grade Government College at Belgaum and as the said course was tough for him, he failed in the said course; that as the complainant wanted to change the course to B.A. I Class, he had been to the Principal of the said college, who is accused herein; and that the principal demanded an amount of Rs. 3,000/- from the complainant. The learned standing counsel further made the submission that fee was only Rs. 1,044/-, but the principal/accused demanded over and above the said amount by way of bribe and as the complainant was not interested to pay the bribe amount, he approached the Lokayukta Police and lodged the complaint. She also made the submission that like this, the accused collected the bribe amount which is against the rules and regulations for the fixed fee to be collected in that regard. She also made the submission that even with regard to the application form seeking admission by the students though the fee for the application form was only Rs. 21/-, the respondent/accused collected Rs. 25/- for each application form and thereby he collected Rs. 4/- over and above the actual fee. Like this, the accused has done with 60 to 62 students. Learned standing counsel further made the submission that after the principal/accused was suspended, P.W.10 was brought in place of the accused person and looking to the oral evidence of P.W.10, he clearly disclosed what was the fee for the said course and, therefore, his evidence also goes to show that the respondent/accused collected more amount than what was fixed for the said course and this also goes to prove that the accused received the bribe amount from the complainant and other students. It is her contention that the respondent/accused collected Rs. 1,956/- in excess of the actual fee from the complainant. She also drawn the attention of this Court to the document at Ex. P.30 with regard to the schedule of fee and made the submission that whatever the amount collected by the respondent/accused is not in accordance with the schedule of fee at Ex. P.30. It is her contention that like this, from all the students, the accused collected Rs. 50,000/- extra amount in respect of which no receipts are issued and there is no account maintained in that regard. It is further submitted that after the trap was conducted, the respondent/accused gave his explanation and about the receipt of the amount of Rs. 3,000/- is concerned, he denied the fact, but admitted the recovery of the said amount from his possession. Regarding the trap proceedings, photographs are taken and they have also been produced and got exhibited during the course of trial. Learned standing counsel made the submission that when the respondent/accused collected amount in excess of admission fee and for selling of the application form to get the admission, he committed the alleged offences by receiving the bribe in excess of over and above his legal remuneration. Learned counsel submitted that when all these materials were produced before the Trial Court during the course of the trial, the Trial Court wrongly read the evidence and wrongly proceeded to acquit the accused persons. Hence, she submitted that the prosecution proved its case beyond all reasonable doubt with the help of oral and documentary evidence and that the judgment and order of acquittal be set aside and the accused person be convicted for the said offences by allowing the State appeal.

Per contra, the learned counsel appearing for the respondent/accused during the course of his arguments made the submission that looking to the evidence of P.W.4, he has admitted in the cross-examination that the contents of the complaint are not as per the narration or dictation by the complainant but they are as per the dictation made by the Lokayukta Police themselves. It is also his submission that none of the prosecution witnesses have deposed or stated in their statements that the accused demanded the bribe amount for the admission to the said B.A. I Class, but it is the contention of all the witnesses that accused collected excess fees. Learned counsel submitted that it is not the excess fee and, according to the accused, it was the fee. Learned counsel also made the submission that fee for the admission to the course as a fresh candidate and the fees for the change of the course and for getting re-admission are not one and the same and hence the counsel submitted as the complainant sought change of course from BBA to B.A. I Class, the respondent/accused has correctly collected the fees and he has not demanded or accepted any bribe from the complainant in this case. Sofar as collection of Rs. 25/- that is alleged to be in excess of actual application fee is concerned, he submitted that there was no such allegation and that there was also no such charge on the respondent/accused. It is also his submission that, as there were no other staff, the Principal himself was working in the college in all the capacities, he was pressurrised with the heavy work in the said college and that whatever fee he collected was not taken to his house, but he had kept it in the almirah in the college itself and when the almirah was checked by the Lokayukta police, the Principal said that amount collected was the exact amount. Learned counsel also made the submission that when it is the contention of the complainant that excess fee was collected from him and so also from other students, prosecution ought to have produced the regulations, notifications, circulars about the fee schedule. In the present case, it is not done and the investigation officer has clearly admitted in his cross-examination that he has not collected those documents during the course of investigation. He also made the submission that P.W.11-the Accounts Officer deposed in his evidence that there is no misappropriation of the amount collected by the respondent/accused. It is also his submission that as the respondent/accused had warned the complainant that he is not attending to the classes regularly and he is teasing girl students of the college and if same thing is continued action will have to be taken against him and because of that enmity to take revenge against the principal, the complainant lodged the complaint by making false allegations. Hence, the counsel submitted that all these aspects were properly appreciated and considered by the Court below and as the prosecution has failed to establish the charge against the accused, the Trial Court rightly acquitted the accused and hence, no illegality has been committed by the Trial Court nor there is any perversity or capricious view taken by the Trial Court in coming to the said conclusion. Hence the learned counsel submitted that there is no merit in the appeal and the same may be dismissed. In support of his contentions, learned counsel relied upon the decision of this Court rendered in Crl. P. No. 15461/2011 decided on 7th July 2011.

I have perused the grounds urged in the appeal memorandum, oral evidence of the parties adduced before the Trial Court, the documents produced and also the judgment and order of acquittal passed by the Trial Court.

The main allegation as against the respondent/accused by the complainant is that the respondent/accused demanded Rs. 3,000/- towards fees for admitting the complainant to the B.A. I Class in the said college which is over and above the schedule fee and thereby he has committed the alleged offence under Sections 7 and 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, let me examine whether the prosecution established that the respondent/accused demanded and accepted bribe amount as alleged by the prosecution. It is the defence of the accused that he never demanded bribe amount, and that as the complainant wanted to change his course from BBA to B.A. I Class, he demanded fees of Rs. 3,000/- and it is not the bribe amount. Perusing the complaint, which is marked at Ex. P.6, it is mentioned by the complainant that when he went to the Principal of the college, the Principal told the complainant that for cancelling the BBA course, he has to pay Rs. 300/- and for admitting to B.A. I Class, he has to pay Rs. 2,700/-. So, totally, respondent/accused demanded Rs. 3,000/-. Now, the question to be considered and appreciated in this appeal is whether, this amount i.e., Rs. 3,000/- demanded by the respondent/accused is the bribe amount or it is the actual fees, as contended by the respondent/accused. Looking to the averments made in the complaint, there is no specific mention that the accused demanded bribe amount from the complainant. Perusing the oral evidence of the complainant-P.W.3, he has deposed on oath that, on that day, the accused told him that for admitting to B.A. I Class, he has to pay Rs. 2,700/- and for cancellation of BBA course, he has to pay Rs. 300/-. He further deposed that on 22.06.2009, he visited the Lokayukta Office and as per the instructions of the Lokayukta Officers, he met the accused on 23.06.2009 and he told the accused that he is poor and requested him to reduce the fee amount and, at that time, the accused told it is not possible for him and he also told that he is not telling any additional fee. He further deposed that then he went to the Lokayukta office and produced the intended bribe amount i.e., six currency notes each of the denomination of Rs. 500/- totally amounting to Rs. 3,000/-. Entrustment mahazar was conducted in the Lokayukta office. The notes were smeared with phenolphthalein powder and they were kept in the pant pocket of the complainant and he was instructed to go to the accused person and if he asks for the money then only he has to give the said money to him and after giving the said amount, he has to give the pre-arranged signal. He further deposed that entrustment mahazar is as per Ex. P.7 and bears his signature. He further deposed that after 15 to 20 minutes, the accused person came to the said place and the complainant met the accused and asked about his admission and accused enquired whether he has brought Rs. 3,000/- or not, again he requested that he is poor and the amount is to be reduced. When the accused told that it is not possible, he took out the amount of Rs. 3,000/- from the pant pocket and gave it to the hands of the accused. Then, after verifying the amount, he kept it in the T-shirt pocket. Then he gave the pre-arranged signal to the Lokayukta police and when they came and asked, where is the amount, the accused took out the amount from the pocket and kept it on the table. In the cross-examination by the learned counsel appearing for the accused, P.W.3-complainant admitted as true that the accused told him that for admitting B.A. I Course he is required to pay fee of Rs. 3,000/-He further deposed in JSS College annual fee is Rs. 1044/-, but he admitted that it is a private and aided college. He further admitted in his evidence as true that as per the Government circulars, the accused told him he has to pay Rs. 3,000/- for getting admission to B.A. I Course and as told by the accused, he obtained Rs. 3,000/- from his father and paid the same to the accused. He further admitted as true that he gave Rs. 3,000/- to the accused person telling him that it is the amount towards college fee. He also admitted that candidates who failed, there is no sort of concession in the fee for such candidates. In the further cross-examination, on 04.09.2012 at page No. 11 of his deposition, he has admitted as true that he gave Rs. 3,000/- to the accused person towards fee. Looking to the oral evidence of this P.W.3, the complainant through out his evidence, he has admitted that the amount or Rs. 3,000/- that he paid to the accused person was towards fee and no where he specifically stated that it was the bribe amount which was demanded by the accused.

Perusing the evidence of P.W.4, who is the shadow witness in this case, he deposed in his evidence in the examination-in-chief that when M.S. Malagi asked Rs. 3,000/-, the complainant produced six notes of denomination of Rs. 500/- totally amounting to Rs. 3,000/- in the Lokayukta office. He further deposed that himself and the complainant went to the office of the accused but on the way, the accused-principal of the college met them and he was moving on his vehicle, but he told that he will come immediately. They went and sat in the chambers of the principal and one Megha Patil, Typist, was there at that time. At about 3.00 p.m. or 3.10 p.m., Principal returned back to his chamber and he sat on the chair. Complainant went and met the said principal and request him to reduce the fee amount for admission, but the Principal insisted that he has to pay Rs. 3,000/-, then the complainant took out from his pant pocket Rs. 3,000/-and paid it to the Principal. In the cross-examination by the learned counsel for the accused, P.W.4 deposed that in his presence the contents of the complaint were written by the complainant and then he gave it to the Lokayukta police. He admitted as true that contents of the complaint are as per the say of the Lokayukta Police. At the time of giving the complaint, the complainant failed in his BBA course and he wanted to change his BBA course to BA. He admitted as true that towards the fee, the complainant paid Rs. 3,000/- to the accused person. He further deposed that the amount to the extent of Rs. 3,00,000/- was kept in the almirahs, all the almirahs were locked and the accused person was having the keys of the almirahs. At that time, what is the amount received from which person, one kaccha yadi was prepared by the accused and it was also kept with the amount. Looking to the evidence of this shadow witness also, he consistently deposed that the complainant gave an amount of Rs. 3,000/- to the accused stating that it is towards fees for admission to the B.A. I Class. So, this P.W.4 also in his evidence has nowhere deposed that the accused demanded bribe amount and collected the bribe amount from the complainant. So evidence of P.W.4 also goes to show that the accused collected amount of Rs. 3,000/- towards fee for admitting the complainant to B.A. I course.

I have perused the evidence of PW10-C. Nanjundegowda who came to the place of accused as Principal, succeeding the accused person to the said office. In his evidence in cross-examination he deposed and admitted as true that when he took charge as Principal of the said college, at that time he has seen the fee particular put on the notice board. When he took charge as the Principal of the said college, one Megha Patil was working there. Therefore, himself and Megha Patil were the only two persons in the said college. Megha Patil was posted to the said College as Typist only nine days earlier to the incident of this case. Before she was appointed to the Typist post, earlier the Principal alone was looking after the entire transaction of the said College. PW11 Kadur Subramanyam Dattatreya, Accounts Officer examined on behalf of the prosecution, has deposed in his evidence in examination-in-chief admitted that the accused has kept proper account of whatever the amount collected by him. Looking to the evidence of all these witnesses, firstly it goes to show that the amount of Rs. 3,000/- demanded by the accused-Principal of the College is towards the fees for the Bachelor of Arts I year Degree Course and no where the prosecution has brought on record through the mouth of any of the witnesses that out of Rs. 3,000/- the accused demanded any portion of the amount as bribe amount and accepted the same as bribe. According to the accused, it was the fees. Even the complainant has stated in his complaint that, the accused while demanding Rs. 3,000/-, he told Rs. 300/- towards the cancellation of the registration of B.B.A. Course and Rs. 2,700/- is towards admitting him to the B.A. I Degree. In spite of all these things, the prosecution is going to contend that still the accused demanded bribe amount and received the bribe amount in this case. Firstly, the prosecution has to produce the materials to show what was the fee during that relevant point of time. In this connection, the evidence of the Investigating Officer is important. The Investigating Officer in this case has been examined as PW14-Wilsonsudhakar S/o. Bhaskar Ugralgol. Perusing his examination-in-chief, from the time of lodging the complaint by the complainant in the Lokayukta Office, he narrated in detail, about the conduct of Entrustment Panchanama in the Office of the Lokayukta and then they all proceeded to the Office of the accused and conducted the trap proceedings as per Ex. P2. About the fee structure is concerned, he has stated at page No. 12 of his deposition, that he has not at all obtained the rules relating to fixing of the fees by the Karnataka Government or the University. By deposing so, the Investigating officer himself has clearly admitted in his evidence that he has not collected relevant circulars, orders or rules and regulations regarding the schedule of fee in the said College. Unless and until, it is produced by the prosecution, it cannot be said that the accused person collected the money as bribe amount. When it is his consistent defence that the fee itself was Rs. 3,000/- according to him, it may be true that he might have collected some excess amount, but whatever the amount collected he prepared a katcha note and kept it in the almirah and looking to the evidence of the Accounts Officer, he clearly deposed whatever the amount the accused has collected, he kept the accounts for the same. Considering this evidence of the Accounts Officer also, it clearly goes to show that the accused has not at all used any portion of the said amount, which he has collected from the students either towards the admission fees or towards the application fee.

It is not doubt true that, the prosecution has examined 3 to 4 students in this case as the prosecution witnesses, who have deposed in their evidence that the accused person while giving application forms has collected Rs. 25/-, though the actual price of the said application was Rs. 21/- only. So far as this allegation is concerned, the trial Court in its judgment, has rightly observed regarding collection of the excess amount for the sale of application forms that firstly there is no specific charge is framed against the accused person about this allegation. The only charge against accused persons is that he demanded and accepted bribe amount from the complainant. Therefore, the trial Court has observed that, unless and until there is specific charge framed against the accused, only by examining some of the students during the course of the trial, it cannot be said that the accused person collected excess amount for the sale of application forms at the rate of Rs. 25/-, though, the actual fees is Rs. 21/- only. Even it if is presumed that the accused has collected Rs. 25/- per application, but in the evidence of the Accounts Officer it is very clear that whatever the amount the accused has collected from the students, for that, he has kept a katcha note and kept the amount in the almirah . Therefore, even if the witnesses were examined on the side of the prosecution to say that the accused has collected an amount of Rs. 25/- instead of Rs. 21/- for the sale of the application forms, on that basis, it cannot be held that the prosecution has established the charges for the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.

The material also goes to show that even prior to conducting the Trap Mahazar Proceedings in this case and even registering the complaint in the case, the Lokayukta Police gave voice recorder to the complainant asking him to go to the Office of the accused i.e. the Principal of the College and record the conversation in connection with the demand that he is going make for the fees amount. Looking to the evidence of the prosecution witnesses, it goes to show that even before registering the case when this exercise was made by the Lokayukta Police it is nothing, but collecting the evidence even before registering the case. This is also clearly admitted by the Investigating Officer himself in his oral evidence. In his cross-examination, at Page No. 11, he has deposed that, for the first time the complainant came to him on 20.06.2009 and on the same day he gave him the voice record and at that time he has not registered the case. He specifically deposed in his evidence that, for the purpose of collecting evidence in the case, he gave the voice recorder to the complainant. This clearly goes to show that even before registering the case, the Investigating Officer gave the voice recorder to the complaining asking him to go to the Office of the Principal and have the conversation recorded through that voice recorder. In this connection, the trial Court has rightly observed in its judgment that, the Lokayukta Police have shown personal interest in the matter and hence, it is the contention of the respondent-accused that the investigation in this case is not done impartially. In this connection, the trial Court also referred the decision of the Karnataka High Court rendered in Criminal Petition No. 15461/2011 decided on July 7h, 2011, wherein it is held that giving voice recorder and showing personal interest in the matter, so as to collect the materials even before registering the case, is showing the interest in the matter. The same is happened in the case in hand also, which is brought on record from the mouth of the prosecution witnesses themselves.

About the Trap Mahazar Proceedings, it is no doubt true that, the complainant, after giving Rs. 3,000/- into the hands of the accused person, gave pre-arranged signal, by wiping his face, with the handkerchief and immediately, the Lokayukta Police rushed to the office of the accused and immediately caught hold both the hands of the accused and were washed in the sodium carbonate solution in the two bowls and said solution turned into pink colour. The same is narrated in the Trap Mahazar Proceedings also and then the amount of Rs. 3,000/- was recovered from the possession of the respondent/accused herein. Looking to the materials placed on record, both, oral and documentary, that is, the explanation offered by the respondent/accused before the Lokayukta, immediately after the trap proceedings are over, he clearly admitted that he has received Rs. 3,000/-, but, it is his contention even in explanation that, he has offered it towards fees amount and looking to his explanation also it is consistent with the earlier evidence of the complainant, the witness and other witnesses also. The said amount accused collected towards fees and as I have already observed above, to show that any portion of Rs. 3,000/- is bribe amount and the respondent accused collected the said amount as the bribe amount no satisfactory material has been placed by the prosecution in this case. Also the concerned rules and regulations, orders, notifications regarding the fee schedule were also not collected by the Investigating Officer to show that this is the schedule fee and he has collected over and above the schedule fee that was fixed. With regard to the allegations of the prosecution that the accused person has not issued the receipts for the amount that he has collected is concerned, it has come on record that in the College there was a scarcity of the staff and one Megha Patil was posted only nine days earlier to this incident and earlier to that, the respondent-Principal was alone looking after the entire affairs of the said College and that was the reason for him for not issuing the receipts, but, the material goes to show that, for the amount he has collected from the students, he used to mention it in the Katcha note, which was kept in the almirah along with the amount and the Accounts Officer who has been examination in support of the prosecution case also told that the accused kept the proper accounts for the amount he has collected. This also shows that there is no misappropriation of the said amount by the respondent-accused.

Under such circumstances, looking to the reasons adopted by the trial Court, I am of the clear opinion that, the view taken by the trial Court in acquitting the accused is one of the possible views taken in the matter. I do not find any illegality in the judgment and order of the acquittal passed by the trail Court, nor there is any perverse or capricious view taken in the matter. The decision taken by the trial Court is in accordance with the materials placed on record. Therefore, there are no valid and justifiable grounds for this Court to interfere into the judgment and order of the acquittal passed by the trial Court. There is no merit in this appeal. Accordingly, the same is hereby dismissed confirming the judgment and order of the acquittal passed by the trail Court.