IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL NO.1240/2015 BETWEEN:
STATE OF KARNATAKA REPRESENTED BY POLICE INSPECTOR KARNATAKA LOKAYUKTHA, POLICE WING BENGALURU CITY DIVISION, BENGALURU (BY SRI.B.S.PRASAD, SPL.P.P.) AND H.L.RAMA MURTHY S/O LANKIYAPP AGED ABOUT 47 YEARS TAX INSPECTOR OFFICE OF THE ASSISTANT REVENUE OFFICER SHANTHINAGARA RANGE BBMP WARD NO.70, MAYO HALL BENGALURU R/AT NO.715, MARUTHI NAGAR HESARAGHATTA POST BENGALURU (BY SRI.P.N.HEGDE, ADV.) ...APPELLANT ….RESPONDENT THIS APPEAL IS FILED UNDER SECTION 378(1) AND (3) PRAYING TO SET ASIDE THE JUDGMENT DATED 29.4.2015 PASSED BY THE XXIII ADDL. CITY CIVIL AND S.J. AND SPECIAL JUDGE URBAN DIVISION AT BENGALURU IN SPL.C.C.NO.53/2010 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 7, 13(1)(D) READ WITH 13(2) OF PREVENTION OF CORRUPTION ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the Lokayuktha Police against the judgment of acquittal dated 29.4.2015 passed by the XXIII Addl. City Civil and Sessions Judge and Special Judge, Bengaluru in Spl.C.C.No.53/2010.
2. Heard and perused the records.
3. Brief factual matrix of the case which emanate from the records are that PW-1, the complainant had lodged a complaint before the Lokayuktha Police stating that pertaining to his clients, Shobaram Soyal, Mishri Devi and Doulath Chowdhary, he has filed an application for change of katha in respect of house property situated within the jurisdiction of BBMP Office, Mayo Hall, Bengaluru. He has mentioned his telephone number in the said application. He has infact filed the said application. After 2-3 days of filing of the application, he received a telephone call from an unknown person stating that he is the case worker and to get the katha transfer, the complainant has to pay bribe of Rs.25,000/- and Rs.10,000/- has to be paid in advance and he told the speaker over phone that he was not willing to pay the bribe. Therefore, he lodged a complaint at Lokayuktha Office as per Ex.P-1. The Lokayutha Police have collected the panch witnesses and conducted the entrustment proceedings and handed over the tainted currency notes smeared with phenolphthalein powder to the complainant and he was directed to go to the office of BBMP Mayo hall and on demand by the case worker, the said amount has to be paid. If he receives the said amount on demand to give pre-instructed signal so as to trap the accused. It is the further case of the prosecution that the complainant and PW-2, the shadow witness went to the office of the BBMP, Malleshwaram and as per the instructions of the Lokayuktha Police, PW-1 has called the accused over phone and inturn the accused told him that he is infront of the office and infront of the complainant alone and then the accused asked for the advance amount and the complainant paid the same and thereafter gave pre-instructed signal to the Investigating Officer. It is the further case of the prosecution that the raiding party immediately rushed to the said spot which was on the road in front of the BBMP Office, Malleshwaram and caught hold of the accused, who alleged to have demanded and accepted the bribe amount and kept the amount in his pant pocket. Post trap proceedings were held by washing the hands of the accused in the Sodium Carbonate solution and the resultant solution turned pink in colour and thereafter the bribe amount was recovered at the instance of the accused and also the pant back pocket was also washed in Sodium Carbonate solution, which also turned to pink in colour. Therefore, the prosecution has laid the charge sheet against the accused that he has demanded and accepted the bribe amount with respect to the work of the complainant pending with the accused. The said case of the prosecution was contested by the accused. After hearing, the charges under Section 7 and 13 1(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was laid and trial was held against the accused. The prosecution in order to prove the guilt of the accused has examined as many as 5 witnesses as PWs-1 to 5 and got marked Exs.P-1 to 25 and material objects as M.Os.-1 to 13. The accused was also examined under Section 313 of Cr.P.C. and he was called upon to enter into defence witness, if any, but he did not chose to do so. After hearing both the parties, the Trial Court has come to the conclusion that the prosecution has not proved the case beyond reasonable doubt.
3. Sri.B.S.Prasad, learned Special Public Prosecutor for the appellant has submitted before the Court that though the complainant’s evidence is not corroborated by the shadow witness, nevertheless the complainant’s evidence is trustworthy and creditworthy for acceptance. If his evidence is read in proper perspective, demand and acceptance by the accused and existence of the work of the complainant’s client is established beyond reasonable doubt. The evidence of PW-1 is also corroborated with the evidence of the Investigating Officer. Therefore, he prayed for setting aside the judgment of acquittal passed by the Trial Court and requested for convicting the accused for the said offence.
4. Per contra, Sri.P.N.Hegde, learned counsel for the respondent-accused submitted that the Courts under Prevention of Corruption Act cases relied upon the corroboration of other evidence with the evidence of the complainant. The shadow witness has totally turned hostile to the case of the prosecution. Even the other panch witness has not fully supported the case of the prosecution. The evidence of the complainant is shaky and it is a distorted version of the complainant, which cannot be made basis for conviction. There is no seizure of any documents at the instance of the accused. The prosecution has failed to prove that the accused is the case worker or anyway connected with the case file of the complainant. Therefore, the trial Court has rightly acquitted the accused on the above said materials. Therefore, he prayed for dismissal of the appeal.
5. I have carefully examined and re- appreciated the entire evidence on record. The trial Court, infact, mainly on two grounds has acquitted the accused. The trial Court after appreciating the evidence has come to the conclusion that PWs-1 and 2, who are the strong witnesses to the prosecution though PW-1 has supported the case of the prosecution, but his evidence is not trustworthy for acceptance; PW-2, who is the shadow witness has materially turned hostile and not supported the case of the prosecution with reference to the demand and acceptance of bribe amount. On the other hand, he has supported the case of the accused in the course of the cross examination that the complainant has actually thrusted the amount into the pocket of the accused. Secondly, the trial Court has come to the conclusion that PWs-1 and 5 themselves have admitted that there was no work pending with the accused. Further, the PW-1 himself has stated that he don’t know who was actually the case worker and the Revenue Inspector and who is the competent authority to change the katha. Therefore, on appreciation of the evidence, the trial Court has acquitted the accused.
6. Even after re-appraisal of the evidence and on careful perusal of the evidence of PW-1, PW-1 has never produced any authorization letter of his clients Shobaram Soyal and Mishri Devi to lodge a complaint or to bribe anybody for the purpose of change of katha. Further, when some unknown person over the phone demanded an amount of Rs.25,000/-, he never enquired who is the actual person, who telephoned to him and whether he was the case worker or whether he has got anything to do with the file of the clients of the complainant. Only on the basis of the telephonic conversation, though the complainant has reluctant to pay any amount and refused to pay the amount to the said speaker over phone, inspite of that he lodged a complaint. And after the entrustment proceedings, he went to the office of the BBMP. Even at that time also he do not know who was the actual person who telephoned him. At the instance of the Investigating agency, he called the person, who telephoned to him earlier over phone. In that context, the said person replied that he was in front of the office particularly in front of the complainant himself even at that time also, the complainant has not stated any conversation taken place between himself and the accused with reference to the designation and as well as the work being pending with the accused, but he has only stated that he demanded Rs.10,000/- and the complainant paid the said amount. Therefore, in my opinion it also amounts to distorted version of the complainant. The story told by the complainant himself is not so appealable and acceptable one without any substantial corroboration with the evidence of PW-1 Though PW-1 has supported the case of the prosecution, the material particulars have to be supported by any other views. Therefore, the Court has to search for other materials. In the above said backdrop, the evidence of PWs-2 and 3 on re- evaluation disclose that PW-2 has totally turned hostile to the case of the prosecution and on the other hand, he supported the case of the accused in regard to thursting of money in the pocket of the accused by PW-1. PW-3 also did not support the case of the prosecution. None of these witnesses have stated that at the time of trap proceedings, any file or documents were seized from the custody of the accused. PWs-1 and 5, as rightly observed by the trial Court have categorically admitted that accused was not the case worker, he was not the competent authority to change the katha and he was only a tax collector.
7. Under the above said circumstances, whether he pretended himself as the person, who can change the katha or he was the case worker ought to have been tested by the Investigating Officer and PW-
1 before laying the trap against the accused. The Investigating Officer also has not stated in his evidence that the accused in any manner connected with the case file of the complainant. Of course under Section 20 of the Prevention of Corruption Act, the Court can draw an inference with regard to the existence of official work with the delinquent employee, in the event only, the demand and acceptance of illegal gratification is proved beyond reasonable doubt by the prosecution. The presumption is not available with the prosecution to establish the demand and acceptance by the accused of any illegal gratification. Therefore, in this particular case, if demand and acceptance is not proved, the existence of work with the accused has to be independency established by the prosecution. But the same was doubtfully shown to the Court as the trial Court has observed that the existence of work is doubtful.
8. Under the above said facts and circumstances, the view taken by the Trial Court on appreciation of evidence is also a possible and plausible view. When once the view taken by the trail Court is a possible view even if the appellate Court on reappreciation comes to a different view such view should not be substituted with the view already taken by the trail Court. Because, if two views are possible on the same set of facts and circumstances, the view which is favourable to the accused has to be preferred. That is the fundamental basic principles of jurisprudence. Therefore, under the facts and the circumstances, I do not find absolutely any material to interfere with the judgment of acquittal rendered by the trial Court. Hence, the appeal fails.
Accordingly, the appeal is dismissed.
Sd/- JUDGE DM