IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.642/2013 BETWEEN:
Sri Chandrashekar Golasangi Aged 44 years S/o Sangappa R/at No.303, 3rd Floor ‘Sai Excellency Apartments’ Lane Opposite Reliance Fresh Hennur Cross Bangalore-560 043. .. APPELLANT (By Sri Venkatesh C Sharma, Adv.) AND:
The State by Karnataka Lokayukta Ambedkar Veedhi Bangalore-560 001. .. RESPONDENT (By Sri B S Prasad, Spl.P.P.) This criminal appeal is filed under Section 374(2) CR.P.C. praying to set aside the impugned judgment and order dated 31.05.2013 passed by the Spl. Judge, Prevention of Corruption Act, Bangalore Urban District, Bangalore city in Spl.C.C.No.83/2007 – convicting the appellant/accused for the offences punishable under Sections 7 and 13(1)(d) punishable under Section 13(2) of Prevention of Corruption Act, 1988.
This appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the appellant-accused under Section 374(2) of Cr.P.C. being aggrieved by the Judgment and order of conviction dated 31.05.2013 passed by the learned Special Judge, Lokayuktha, Bengaluru, in Spl.C.C.No.83/2007. By the said judgment, the appellant-accused has been convicted for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short the P.C. Act) and sentenced to undergo rigorous imprisonment for eight months and to pay fine of Rs.3,000/-, in default, to undergo simple imprisonment for one month. The appellant-accused has been further sentenced to undergo imprisonment for 14 months for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act and to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months.
The appellant herein has challenged the legality and correctness of the aforesaid judgment and order so also the sentence on the grounds as mentioned at paragraph Nos.3 to 22 in the appeal memorandum.
2. Brief facts of the prosecution case as per the complaint averments is as follows:
P.W.2 is the complainant in this case. He lodged the complaint on 19.9.2006 before the Police Inspector, Karnataka Lokayuktha, Bengaluru as per Ex.P.2 alleging that he is the electrical contractor in respect of 100 KVA T.C. work in the petrol bunk belonging to Bharat Petroleum, H.R.B.R. Road, Kalyani Nagar. He required NOC from the appellant accused, who is working as the Deputy Electrical Inspector and he had to issue NOC for the said work. The appellant accused demanded Rs.10,000/- for giving the said NOC. As the complainant was not willing to pay the said bribe amount, he approached and requested Lokayuktha police to take appropriate action against the appellant-accused. On the basis of the said complaint (Ex.P.2), FIR came to be registered. Then the entrustment mahazar was conducted in the office of the Lokayuktha as per Ex.P.11. It is the further case of prosecution that thereafterwards, they left to the office of the appellant-accused. The complainant and P.W.3 were asked to go to the office of the appellant- accused. It was informed that if the accused demands the amount, then only P.W.2 shall give the tainted currency notes smeared with phenolphthalein powder to the accused. Then, he shall flash a pre arranged signal by changing the watch from right wrist to left wrist. Accordingly, P.Ws.2 and 3 went to the office of the appellant-accused. Thereafter, the complainant gave prearranged signal. The investigating officer and his co- staff and another panch witness rushed to the spot and caught hold both the hands of appellant-accused. Then sodium carbonate solution was prepared in two separate bowls and his right hand was cleaned in one bowl and the solution turned into pink colour and thereafter, his left hand was also taken in another bowl, the said solution was turned into pink colour. The same was secured in the sealed bottle and seized. It is the further case that there afterwards, the accused was asked to produce the bribe money. He took out from the pant pocket and produced before the investigating officer and the same was seized. Then his back side portion of the pant pocket was also washed in the solution and it also turned into pink colour and the same was secured in the bottle. The pant was also seized. Thereafter, the appellant-accused was asked to offer explanation about the money. He offered his explanation as per Ex.P.16. Then some papers were also seized during trap mahazar which was also included in the proceedings. Subsequently, after completion of the investigation, charge sheet came to be filed for the offences punishable under sections 13(1)(d) read with Section 13(2) of the P.C. Act. The charges were framed and read over to the accused. He pleaded not guilty and claims to be tried. Accordingly, plea was recorded and then the matter was posted for trial.
3. The prosecution, in respect of its case, has examined 5 witnesses as per P.Ws.1 to 5 and got marked the documents as per Exs.P.1 to P.23 so also got marked the material objects as per M.O. Nos.1 to 13. The prosecution closed its side. On the side of the defence, two witnesses were examined as D.Ws.1 and 2 and during the course of the proceedings, the defence also got marked the documents as per Exs.D.1 to D.11.
4. The Court below, after hearing the arguments of the learned counsel on both sides and considering the materials, both oral and documentary, held that the prosecution proved the charges and held the appellant accused guilty for the offences referred above. Hence, being aggrieved by the judgment and order of conviction so also the sentence imposed on the appellant-accused, he is before this Court in this appeal.
5. Heard the arguments of learned Counsel appearing for the appellant so also learned Spl.P.P. appearing for the respondent Lokayuktha.
6. Learned Counsel for the appellant during the course of the arguments, made submission that the Court below has not properly appreciated the materials placed on record, both oral and documentary. The Court below has wrongly read the evidence and wrongly came to the conclusion in holding that the prosecution has proved its case beyond reasonable doubt. The learned Counsel drawing the attention of this Court to the sanction order issued, and made submission that the evidence of P.W.1 goes to show that earlier two sanction orders issued were defective and because of that reason, they were withdrawn and subsequently, the present sanction order came to be issued for the prosecution of the appellant accused. The learned Counsel submitted that as per the requirements of law, the sanction order ought to have been approved and issued by the cabinet. But the concerned minister only has issued the sanction order, which is not in accordance with the provisions of section 19 of P.C. Act. The learned Counsel made further submission that when the sanction order was not issued by the person, who is competent to issue the same, it is held to be void ab-initio and cannot be looked into and the understanding is that there is no sanction order.
This important aspect is completely overlooked by the learned Special Judge while coming to the conclusion that the prosecution has proved its case beyond reasonable doubt. Coming to the merits of the case, the learned Counsel also made submission that so far as the demand and acceptance of the bribe amount is concerned, there is no cogent and acceptable material placed by the prosecution to establish the factum of demand, acceptance of the bribe by the appellant-accused. In this connection, the learned Counsel draws the attention of this Court to the contents of complaint (Ex.P.2) and made submission that looking to the contents of the complaint, they are bald and vague and there is nothing with reference to, on which date, particular time and place, the demand of Rs.10,000/- was made. The complaint is totally silent on this aspect. Referring to the trap mahazar proceedings (Ex.P.12) also, the learned Counsel draws the attention of this Court that there is no mention as to when the complainant (P.W.2) approached the accused and when the accused demanded the bribe amount from the complainant, there is no such averments specifically made in Ex.P.12. The learned Counsel also submitted that the shadow witness (P.W.3) has stated in his evidence that when the complainant (P.W.2) and himself went to the accused and when the complainant asked about his work with the accused person, the accused asked the complainant as to whether he has brought the bribe amount. In this connection, the learned Counsel referred to the evidence of the main witness, who is the complainant and he has to state about all these things. Looking to the evidence, the learned Counsel submitted that the shadow witness has played the role of the complainant and the complainant is considered to be the shadow witness in the case. It is also the submission of the learned Counsel that looking to the contents of the trap mahazar so also the oral evidence of the prosecution witnesses itself, it is stated that the accused person took some notes which were fell on the ground. If this is the fact, how they were able to recover the entire amount of Rs.10,000/- from the possession of the accused, which is not properly explained by the prosecution. With regard to the hand wash of the appellant-accused in sodium carbonate solution, the learned Counsel submitted that there is no acceptable material placed on record to show as to when the accused alleged to have received the amount and how he handled the said amount whether with both hands. In this connection, he draws the attention of this Court to the evidence portion of the prosecution witnesses, wherein it was admitted that the accused was carrying the bag in one hand. When he was having the bag in one hand, how can he count the currency notes in both the hands. In this connection, he draws the evidence of complainant (P.W.2), wherein the complainant has not stated about the accused receiving the tainted currency notes, counting them from his both hands. Hence, it is his submission that when this factum of counting the notes from both the hands itself is not established, the question of taking hand wash and the solution turning into pink colour does not arise. The learned Counsel made submission that though it has come on record that the complainant was given the tape recorder to record the proceedings and conversation, but the prosecution has not at all produced the same during the course of trial, it was withheld by the prosecution. In this connection, he draws the attention to the oral evidence of the complainant and referred to his admission that Lokayuktha police gave him the tape recorder and if that is the case, the prosecution ought to have produced the said tape recorder before the Court. Even, if it is contention of the complainant that it was not properly recorded, but, ultimately it was for the Court below to see whether it was recorded or not, which was not done in this case. Hence, prima facie case is not established regarding the demand and acceptance of the bribe amount by the appellant-accused. It is further submitted by the learned Counsel that one version of the prosecution witnesses itself goes to show that when the complainant went to the accused, he was sitting in his place attending to his work. Another version is that the complainant met the accused on the public road and that, at the said place, he accepted the bribe amount. With regard to that aspect also, there is no consistency in the case of prosecution with regard to the place of incident, exactly where he received the bribe amount. The accused has also examined two witnesses as per D.Ws.1 and 2 and he has offered explanation as per Ex.P.16 wherein it prima facie goes to show that when the complainant and shadow witness tried to put the amount forcibly into his pant pocket, he protested for the same and it was thrown. Hence, the learned Counsel submitted that this conduct of the appellant-accused shows that he never accepted the bribe amount. Regarding the defence of the accused, he need not prove the defence beyond reasonable doubt. Only preponderance of probability is shown by the appellant-accused and that is enough so far as the defence evidence is concerned. Considering the entire materials placed by the prosecution, both oral and documentary, the demand and factum of acceptance of the bribe amount is not satisfactorily and cogently proved by the prosecution, which is worth believable by the Court below. These aspects were completely ignored by the Court below. Hence, the learned Counsel submitted that looking to the entire prosecution material, reasonable doubt arises as to the case of prosecution that whether really the things have taken place in the manner that was projected before the Court below. Hence, he prayed to allow the appeal and set aside the judgment and order of conviction and also the sentence imposed on the appellant-accused.
7. Per contra, learned Spl.P.P. appearing for the respondent-Lokayuktha made submission that looking to the contents of the complaint, oral evidence of P.W.2 and the contents of entrustment mahazar (Ex.P.11) and the trap mahazar (Ex.P.12), the prosecution has made out the case that there was demand of bribe amount of Rs.10,000/- from the complainant by the appellant- accused. He made submission that the demand and acceptance of bribe amount by the appellant-accused from the complainant is also supported by the independent witness i.e., the shadow witness (P.W.3) in this case. In this regard, the learned Spl.P.P. also draws the attention of this Court to the contents of the complaint, entrustment mahazar (Ex.P.11), trap mahazar (Ex.P.12), oral evidence of P.Ws.2 and 3 and made submission that it is clear that there was demand for Rs.10,000/- towards bribe amount to attend the work of the complainant. The learned Spl.P.P. also submitted that the case of prosecution is supported by the opinion of experts’ of FSL. He refers to the opinion of experts to show that the presence of sodium carbonate solution and phenolphthalein powder both were positive. So far as washing of both the hands of the appellant-accused is concerned, the learned Spl.P.P. made submission that regarding the appellant-accused receiving the bribe amount and keeping in his back side pant pocket, the pant was also seized during investigation. Either side of the pant was also washed which turned into pink colour. This goes to show that the appellant-accused received the amount and kept into the pant pocket. If defence of the accused is accepted that he has not received the bribe amount nor kept in the backside pant pocket the question of washing the same in the sodium carbonate solution does not arise. The learned Spl.P.P. referring to the evidence of investigating officer, made submission that his evidence is also supporting the prosecution case, who in detail explained about the investigation and he attending in the matter. So far as the sanction order is concerned, learned Spl.P.P. made submission that the sanction order issued by the concerned Minister is valid sanction order. In this connection, he relied upon the judgment of this Court dated 15.6.2017 rendered in Crl.P.No.899/2017 and made submission that even according to the judgment of this Court also, the sanction order issued and produced for prosecution of the appellant-accused is legal and valid and apart from that, its validity cannot be challenged in the proceedings since no objections were raised while marking the sanction order. Even on that ground also, the appellant-accused cannot succeed in the appeal. The learned Spl.P.P. ultimately made submission that the Court below has extensively considered each and every aspect of the matter, oral and documentary, in a proper perspective and rightly came to the conclusion that the materials on record clearly establish the guilt of the accused and accordingly held that the appellant-accused is guilty for both the offences. The learned Spl.P.P. made submission that no illegality has been committed by the Court below nor perverse or capricious view has been taken by the Court below in coming to such conclusion. Therefore, the learned Spl.P.P. submitted that there is no merit in the appeal and same may be rejected.
8. I have perused the grounds urged in the appeal memorandum and the judgment and order of conviction passed by the Court below, oral evidence of the prosecution witnesses and also the documents produced before the court below, so also considered the oral submission made by the learned Counsel on both sides at the time of arguments of the case.
9. Let me examine the materials placed on record so far as the aspect of demand and acceptance of bribe is concerned, in this case, I have perused the complaint (Ex.P.2) filed by the complainant. Looking to the complaint, no doubt, the complainant has mentioned that in connection with the NOC, the accused demanded the amount of Rs.10,000/- from him. But on which date the demand was made, at what time and also at which place the said demand was made, the complaint is silent about these aspects. Apart from that, the complainant has not specifically mentioned in the complaint that where the said demand for the bribe amount was made, when he had personally approached the accused person or whether it was over the phone conversation, even with regard to that also, the complaint is silent.
10. Perusing the oral evidence of complainant (P.W.2) wherein he has stated that on 19.9.2006, when he approached the accused, at that time, the accused demanded the bribe amount. In para 2 of his examination in chief, P.W.2 has specifically deposed that on 19.9.2006, he went to the accused who was jurisdictional Electrical Inspector and request was made to give No Objection Certificate. In para No.3, P.W.2 has stated that the accused demanded bribe of Rs.10,000/- for doing the official act. He was not interested to pay bribe. Hence, he went to the Lokayuktha police and lodged the complaint as per Ex.P.2. This oral evidence of P.W.2 goes to show that the demand for bribe amount was on 19.9.2006, when he personally went to the accused person. Looking to the cross examination portion of the complainant P.W.2 wherein he has stated that the accused had demanded money from him and had also demanded money from the boy of the complainant by keeping the work pending. He had also telephoned and the demand was reiterated.
11. Apart from that, looking to trap mahazar (Ex.P.12) there was no information that when the inspector and the other raiding party rushed to the office of the accused person after the pre-arranged signal given by the complainant, the complainant told before the inspector that he enquired about his work with the accused person and at that moment of time, the accused demanded the bribe amount. There is no such specific narration in Ex.P.12. It is no doubt true that there is mention in Ex.P.12 that when the inspector asked the shadow witness (P.W.3), he told in his evidence that himself and the complainant together went and after seeing the accused, the complainant enquired with him about the work. At that time, the accused asked the complainant whether he has brought money which he had asked. Looking to this evidence of shadow witness (P.W.3), there is no consistency in the evidence of P.W.2 and P.W.3. There is also no consistency in the contents of trap mahazar so also the oral evidence of P.Ws.2 and 3.
12. The prosecution had also wanted to establish the demand and acceptance of bribe amount basing on the chemical test and the hand wash of the accused person alleged to have taken during the course of trial. Before coming to the said aspect of the matter, another important aspect as per contents of the entrustment mahazar (Ex.P.11) is that, in the Lokayukta office when the complainant produced Rs.10,000/-, the intended bribe, it was smeared with phenolphthalein powder, then it was kept in the cover and then that cover also was smeared with phenolphthalein powder and the same was kept in the purse of the complainant asking the complainant by the investigating officer that on his going to the office of the accused, in case, there is demand of bribe by accused, he has to pay same to the accused.
Now looking to the oral evidence of the prosecution witnesses, P.Ws.2, 3 and P.W.4 (S.Manjunath), they have not at all whispered as to what had happened to the cover in which the tainted currency notes were kept. But their evidence goes to show that as if in the Lokayuktha office, the currency notes were kept in the purse. There was nothing in the evidence of P.Ws.2 and 3 that the complainant took out the cover and from the cover, he took out the amount and then he paid the same to the accused person. Apart from that, there is no explanation even from the mouth of investigating officer as to what had happened to the cover in which the currency notes were kept. Therefore, it goes to the very root of the matter and raises a doubt in the mind of the Court about the manner in which the prosecution projected its case during the course of trial. Perusing the material objects marked during the course of trial, as I have already observed, the cover in which the notes were kept was not at all produced before the court and the said aspect is totally unexplained by the prosecution.
13. It is the case of prosecution that the amount was paid to the accused person on the road which was in front of the office of the accused after giving the pre arranged signal. Then investigating officer and the other team came there. Thinking that the said place is being public road and not good for the proceedings, they took accused to chamber wherein the other proceedings were conducted. Then immediately, trap team caught hold both the hands of accused person, then hand wash was taken. But the material which was elicited during the course of cross examination from the mouth of prosecution witnesses goes to show that they went to meet the accused person and he was in his office attending to his work. When that it is so, why the accused person came out of his office up to the public road after the gate to receive the bribe amount on the public road itself. This also appears to be most improbable and unnatural for the Court to accept the contention of the prosecution.
14. It has come during the cross examination of the prosecution witnesses that when the accused was coming, he was holding bag in his left hand. When that is so, the contention of the prosecution that after receiving the bribe amount, how the accused counted from both his hands, is also not properly explained. Not only that, in the trap mahazar proceedings, there is no specific averments so far as the evidence of the complainant is concerned that after receiving the amount, the accused counted it on both of his hands, then he kept it in his pant pocket. No doubt, it is the averment by P.W.3 that after receiving the bribe amount, the accused counted it on both of his hands, then he kept it in his pocket. The case of prosecution is also to be appreciated along with the defence taken by the accused in respect of the receipt of bribe amount and keeping it in backside of his pant pocket. It is the further defence of the accused, during the course of cross examination of prosecution, that he has not at all received the bribe amount, P.W.1 tried to thrust the amount in his pocket, he protested for the same using the words ‘thegi thegi’. Therefore, the materials go to show that in that process, three notes fell on the ground. But the evidence of investigating officer goes to show that the accused produced the bribe amount, he asked one of the witnesses to compare the numbers of the notes, the amount was Rs.10,000/-. There is no evidence satisfactorily explained by the prosecution that if three currency notes were fell on the ground, how the said notes were collected and taken into consideration while counting the notes along with notes produced by the accused. There is no such evidence placed on record as to how there was amount of Rs.10,000/-, when admittedly three currency notes were fell on the ground.
15. Another important aspect of the matter as per the evidence of D.Ws.1 and 2, whom the accused has examined on his side, it is their evidence that they were also working in the office of the accused. Therefore, their evidence goes to show that when they were along with the accused, the complainant and another person came to the office of the accused, they tried to keep the money into the pant pocket of the accused person, he was protesting for the same and in that process, some of the notes fell on the ground. This evidence of D.Ws.1 and 2 is consistent with the defence raised by the accused person during the course of trial.
16. I have carefully perused the evidence of investigating officer. Though he admitted in his evidence during the course of cross examination that when he rushed to the office of the accused, there were other persons also. But when he was asked during cross examination that whether, he recorded the statement of other persons who were present in the office of the accused person, the investigating officer said ‘no’. In this regard, the evidence of D.Ws.1 and 2 is also very important that, during the course of their cross examination, when they were asked, whether they were present in the office of accused along with him and whether they have given their statement before the investigating officer. For the said question, both D.Ws.1 and 2 answered that the investigating officer has not at all asked to give their statement. Therefore, there was no occasion for them to give their statement before the investigating officer though they were very much present in office of the accused when the alleged incident was going on.
17. It is the case of prosecution that after the accused receiving the bribe amount kept in the pant pocket and at the time of raid, when the inspector and all others rushed, firstly, hand wash of the accused was taken, both right and left hand wash were put in two separate bowls containing sodium carbonate solution which turned into pink colour and therafterwards, they asked the accused person to produce the amount. Accordingly, the accused took out amount and produced before the investigating officer and at that time also, it was the case of prosecution that the amount was Rs.10,000/-, though I have already discussed that when three currency notes fell down on the ground, the amount cannot be exactly Rs.10,000/-.
18. Apart from that, though it is the case of prosecution that by arranging alternative pant to the accused, he was asked to give pant. Accordingly, he gave his pant and inner portion of the pant pocket was washed in the sodium carbonate solution and it also turned into pink colour. It was secured in the bottle and sealed. As per the case of prosecution, the said bottle was sent to FSL for examination and its report was obtained and produced as per the Ex.P.22. Along with Ex.P.22, the result of analysis so far as pant is concerned, though it is mentioned in the column which shows presence of phenolphthalein powder, but so far as the presence of sodium carbonate solution is concerned, the report is negative. Therefore, their own report goes to show that it was not washed in the sodium carbonate solution. Otherwise, there was no reason for the experts to mention the negative finding so far as the presence of sodium carbonate in the inner portion of the pant of the accused is concerned.
19. It is also the case of prosecution that as per the evidence of complainant (P.W.2), a tape recorder was given to him by the investigating officer. In this connection, let me refer to the evidence of P.W.2 as to what he has deposed about the said aspect. On page No.13 of the deposition, in the cross examination, he has deposed that Ex.P.13(a) seen in the photograph is a tape recorder. It was used for the present case, but there was no proper recording. It was given to him by the Lokayuktha police. When it was his evidence on oath that the tape recorder was given to him for using it in the trap proceeding and to record the conversation regarding the demand of bribe amount and the demand made by the accused person, it was the duty of the investigating officer to seize the said tape recorder during investigation. Referring to the evidence of investigating officer, there was no whisper with reference to tape recorder. Even he was not prepared to depose before the Court to the effect that such tape recorder was given to complainant (P.W.2). If P.W.2 had deposed on oath that it was given by Lokayuktha police why he had not produced the tape recorder before the investigating officer is another important aspect of this case. When it was given with specific instruction by the Lokayuktha police, it was bounden duty of the police as well as the complainant to bring it to the notice of the Court by producing the same before the Court. It is no doubt true that the complainant (P.W.2) stated that there was no proper recording in the tape recorder. Neither the complainant (P.W.2) nor the investigating officer are the authorities to take a decision in the matter. It is only their duty to produce before the Court and ultimately, it is for the Presiding Officer of the Court to look into the tape recorder by playing it in the open Court to know as to whether the conversation was recorded or not and if recorded, whether it was properly audible or not. There was no such opportunity for the Court below because the production of the very tape recorder has been with held by the prosecution. Therefore, as per Section 114(g) of Evidence Act, adverse inference has to be drawn against the case of prosecution that in case the tape recorder was produced before the Court, the conversation in it would have gone against the case of prosecution. Therefore, it also raises a reasonable doubt in the mind of the Court whether such a thing has happened as projected by the prosecution.
20. Apart from that, looking to the deposition of the sanctioning authority (P.W.1), he was treated as hostile witness by public prosecutor. The public prosecutor was going on putting suggestions to the witness and he said ‘yes’ to all the suggestions of the public prosecutor. Regarding the work of the complainant also, the evidence of the complainant (P.W.2) itself goes to show, that, on page No.11 of his deposition, it was recorded that if it was suggested that after inspecting accused said, some work was pending, his response was all the works were completed except fixing of sleeves to the pipe. This evidence also goes to show that work was not pending with the accused person.
21. Coming to the evidence of P.W.5, the investigating officer, on page No.33 of his deposition, he has deposed that he asked the accused to produce the amount, which he received from the complainant. The accused produced the amount from back pocket of the pant. He asked the witness to tally it with Ex.P.10. It tallied. Thereafter, the cash was seized and sealed in cover as per M.O.10. Looking to this evidence of P.W.5, it is again contrary to what has been deposed by the prosecution witnesses that when the accused was trying to throw the amount, three currency notes were fell down, which was not spoken to by this witness because as his evidence goes to show whatever the amount he counted, it was tallying with the number of notes which were recorded at time of entrustment mahazar proceedings itself.
22. The evidence of investigating officer (P.W.5) is contrary to the evidence of complainant (P.W.2). Being the responsible police officer, he was not ready to depose the truth before the Court on oath. He has deposed that normally, they send tape recorder in a trap proceedings. But in this case, they have not sent it. This again goes against the evidence of the complainant (P.W.2) and the exhibited documents. Even then, P.W.5 was not ready to accept the same and he denied that they have given such tape recorder to the complainant. On page No.37, at the end portion, he has deposed and accepted the suggestion that it is true that he has not recorded the statement of such persons present in the office of the accused. When the other persons were very much available in the office of the accused, nothing prevented the investigating officer to record their statement. This is what is deposed by D.Ws.1 and 2 in their evidence. That they were the persons witnessed the incident, protest made by the accused, refusing to receive the amount, even then the investigating officer has not at all recorded their statement nor he asked them to give their statement. Therefore, looking to this piece of evidence, there is consistency in the defence raised by the accused in his explanation at page No.16 so also what was deposed by D.Ws.1 and 2 in support of the accused.
23. Apart from that, so far as the standard of proof is concerned, the accused need not establish his defence beyond reasonable doubt like prosecution proving its case beyond reasonable doubt. Preponderance of probability is sufficient for the accused to prove his defence. Looking to the materials placed on record, the accused has placed ample materials to prove his defence that he never received the bribe amount when offer was made by the complainant (P.W.2) and shadow witness (P.W.3) and when they kept the amount into his pant pocket, immediately he resisted for the same ‘thegi, thegi’ means remove, remove. These aspects were not at all considered by the Court below. Considering the materials both oral and documentary about which I have made reference clearly establishes the fact that prosecution has utterly failed to make out case that there was demand for the bribe amount and the acceptance of bribe amount by the accused person.
24. So far as the sanction aspect is concerned, though learned Counsel for the appellant accused has seriously contended before this Court regarding the validity of the sanction order, but referring to the evidence and looking to the materials placed on record, firstly such serious objection was not raised before the Court below. But when marking of the document took place, it was marked without any such objection by learned Counsel. Apart from P.W.1, who has been examined in support of the sanction issue deposed in her evidence that after considering the entire materials along with requisition for issuance of the sanction order same was considered by the concerned minister and then only the sanction order was issued. Therefore, the oral evidence of P.W.1 and the contents of the sanction order (Ex.P.1), it goes to show that there was mental application to the said sanction order before issuing the same. Apart from that, looking to Section 19(3)(a) of PC Act, when objection was not raised before the Court below, its validity cannot be challenged subsequently, unless it is shown by the accused person as to how he has been prejudiced by the said sanction order. Therefore, the contention of the learned Counsel for the appellant in that regard cannot be accepted.
25. Looking to the entire materials placed on record and the judgment and order of conviction passed by the court below, I am of the opinion that the finding arrived at by the Court below is not in accordance with the materials placed on record, both oral and documentary. The important material aspects of the case were not properly considered and appreciated by the Court below. Therefore, the judgment and order of convection passed by the Court below is illegal, perverse and capricious. Hence, the appellant-accused has made out a case by acceptable and cogent material that the case of prosecution is to falsely implicate him in the said case.
26. Accordingly, the appeal is allowed. The judgment and order of conviction passed by the Court below is hereby set aside. The appellant-accused is acquitted of the offences punishable under sections 7, 13(1)(d) read with Section 13(2) of the PC Act. The bail bonds executed by the appellant-accused stands cancelled. The fine amount deposited by the appellant- accused, if any, be refunded to the accused.
Sd/- JUDGE Cs/-