Land Acquisition & Rehabilitation Practices in Gulbarga, Karnataka.
IN THE HIGH COURT OF KARNATAKA, GULBARGA...
Transcript of IN THE HIGH COURT OF KARNATAKA, GULBARGA...
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IN THE HIGH COURT OF KARNATAKA, GULBARGA
BENCH
Dated this the 28th day of February, 2014
BEFORE
THE HON’BLE MR. JUSTICE B.V. PINTO
Criminal Appeal No.3617/2011
BETWEEN:
1. VENKATESHS/O BASAVARAJ MUNDARGIAGED ABOUT 36 YEARSOCC: SUPERINTENDENTSOCIAL WELFARE OFFICEYADGIR
2. ZAKEER HUSSAINS/O ABDUL MAJEEDAGED ABOUT 35 YEARSOCC: FDASOCIAL WELFARE OFFICE
YADGIR …APPELLANTS
(BY SRI BABURAO MANAGANE, ADV., )
AND:
THE STATE OF KARNATAKATHROUGH LOKAYUKTA POLICE YADGIR(REP.BY STATE ADDL. PUBLIC PROSECUTOR)
…RESPONDENT
(BY SRI. A.SYED HABEEB, SPL.PP)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2)OF CR.P.C. PRAYING TO ALLOW THE APPEAL AND SET ASIDETHE JUDGMENT OF CONVICTION AND ORDER OF SENTENCEDATED 28.7.2011 OF THE COURT OF DISTRICT AND SESSIONSJUDGE, YADGIRI IN SPECIAL CASE NO.01/2010 CONVICTING
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THE APPELLANTS/ACCUSED FOR THE OFFENCES P/U/S.7,13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT ANDTHE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERTOR.I. FOR FIVE YEARS AND FINE OF RS.20,000/- IN DEFAULT HESHALL UNDERGO S.I. FOR ONE MORE YEAR FOR THEOFFENCES P/U/S.7 OF PREVENTION OF CORRUPTION ACTETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed challenging the judgment
dated 28.7.2011 passed by the Sessions Judge and
Special Judge, Yadgiri in Spl.Case No.01/2010,
convicting appellant No.1-Venkatesh (accused No.2) of
the offences under Section 7 and Section 13(1)(d) r/w
13(2) of the Prevention of Corruption Act, 1988 [‘PC Act’
for short] and sentencing him to undergo rigorous
imprisonment for a period of 5 years and to pay fine of
Rs.20,000/- in default of fine to undergo simple
imprisonment for a period of one year for the offence
under Section 7 of PC Act and further sentencing him to
undergo R.I for a period of 7 years and to pay fine of
`20,000/- in default to undergo S.I for one year for the
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offence under Section 13(1)(d) read with13(2) of the PC
Act and further convicting appellant No.2 (accused No.3)
of the offences under Sections 7 and 13(1)(d) r/w 13(2)
of the PC Act and sentencing him to undergo rigorous
imprisonment for a period of 5 years and to pay fine of
`20,000/- in default of fine to undergo simple
imprisonment for a period of one year for the offence
under Section 7 of PC Act and further sentencing him to
undergo R.I for 7 years and to pay fine of `20,000/- in
default to undergo S.I for one year for the offence under
Section 13(1)(d) r/w Section 13(2) of the PC Act.
2. It is the case of the prosecution that accused
No.1-Pandurang (now deceased) was the Social Welfare
Officer in the office of Taluka Social Welfare Office,
Yadgiri and accused No.2-Venkatesh was the
Superintendent in the said office, accused No.3-Zakeer
Hussain was the First Division Assistant in the office of
Social Welfare Office, Yadgiri. It is the case of
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prosecution that all the accused persons on 27.2.2006
at about 12.55 p.m. in the Taluka Social Welfare Office
at Yadgiri demanded a sum of `3,000/-, `2,000/- and
`1,000/- respectively as illegal gratification in order to
do official favour to the complainant-Sri Zulfikar Ali S/o
Shairali Soudagar in order to prepare bill and make
payment of rent of the building belonging to the
complainant and accepted `2,500/-, `1,000/- and
`500/- respectively in order to do official favour to the
complainant and thereby they are charged for having
committed offences under Sections 7 and Section
13(1)(d) r/w 13(2) of the PC Act.
3. The prosecution in order to prove the case
has examined in all six witnesses and got marked
Exs.P1 to P-23 and produced MOs.1 to 18. The defence
of the accused was one of total denial. The appellants
got themselves examined as DW.1 & DW.2 respectively
and also produced the certified copy of the proceeding of
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Chief Executive Officer, Zilla Panchayat as Ex.D-1. In
the meantime accused No.1 by name Pandurang died
and therefore the case was proceeded against the
appellants and by the Judgment impugned in this case,
the learned Special Judge was pleased to convict the
appellants and sentenced them as aforesaid. It is this
Judgment of conviction and sentence, which has been
challenged by the appellants in this appeal.
4. The proceedings in this case had
commenced with the complaint filed by one Zulfikhar Ali
S/o Shairali Soudagar on 27.2.2006. In his complaint
addressed to the Police Inspector, Karnataka
Lokayuktha, Yadgir, the Complainant has stated that he
belongs to Gajarakote village and that he has got two
houses in the said village. He is residing in one house
and the other house has been given on rent to the
Gulbarga District Social Welfare Department from
15.7.2004 for running a Government Girls Hostel. He is
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receiving a sum of `3,300/- per month as rent from the
Public Works Department. The said hostel is run from
15.7.2004. However, no rent has been given by the
Department till then. In this connection, he has
approached the Taluka Social Welfare Officer and
District Social Welfare Officer and ultimately he
approached the Chief Executive Officer, Zilla
Panchayath, Gulbarga and at his request, an order was
made to pay the rent of Government Girls Hostel. The
Chief Executive Officer, Zilla Panchayath, Gulbarga
passed the said order on 4.2.2006 and according to the
said order he had directed to prepare the bill and to
write a cheque and hand it over to him by the Taluka
Social Welfare Officer, Yadgir. In this connection, on
14.2.2006, he went to the said office and contacted Sri
Zakeer Hussain. The said Zakeer Hussain instructed
him to meet the Taluka Social Welfare Officer and
accordingly he went and met the said officer. The Social
Welfare Officer instructed the Manager-Venkatesh and
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the concerned clerk - Zakeer Hussain and after
discussion among them, he has demanded a sum of
`6,000/- as illegal gratification for preparing a bill worth
`61,050/-. It is stated in the complaint that the said
amount of `6,000/- is towards `3,000/- payable to the
Taluka Social Welfare Officer, `2,000/- to the accused-
Venkatesh-Manager and `1,000/- to Zakeer Hussain.
The Complainant thereafter informed the accused that
the said amount is too much for him and requested to
reduce the same and at that time, the Taluka Social
Welfare Officer represented that a sum of `2,000/-
should be paid to him. Similarly, a sum of `1,000/- to
the Manager and `1,000/- to the clerk. In all, he
demanded a sum of `4,000/- and promised that only
after the amount is paid, he would prepare the bill.
Since the complainant did not want to give the bribe to
the accused, he approached the Inspector of Police,
Lokayuktha who registered a case in Crime No.2/2006
on the basis of the complaint of Zulfikhar Ali on
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27.2.2006. The Inspector of Lokayuktha thereafter
commenced the investigation and prepared an
entrustment mahazar as per Ex.P1. After entrustment
mahazar was prepared, the Inspector Lokayuktha along
with the Complainant and one shadow witness by name
Sri Venugopal and also PW.1-Jagadeesh went over to
the office of accused situated at Taluk office in Yadgir
District. Thereafter, the tainted money, which was
entrusted to the Complainant, was handed over to the
accused on their demand in their office at about 1 pm
on the same day i.e., on 27.2.2006. Immediately, a raid
was conducted and the incriminating notes were seized
from the office. A panchanama as per Ex.P2 was
prepared in the office of Taluka Executive Office.
During the preparation of Panchanama, the hands of
the accused was dipped into the sodium carbonate
solution and the said solution having been turned into
pink colour, all the three accused were apprehended
and after investigation charge sheet came to be filed.
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5. PW.6-Chandrakanth is the Inspector of
Police, who on receipt of the complaint from the
complainant on 27.2.2006, between 10 and 10.15 a.m.
proceeded, with the registration of the case. The
complaint is marked as Ex.P5. PW.6 after completion of
the formalities in the scene of occurrence in the office of
Block Education Officer returned to the Station and
thereafter investigation was continued. PW.5 has taken
the written statement of both the accused on the spot,
which are marked as Exs.P14 and P15. PW.6 thereafter
sent the seized notes for FSL examination, forwarded
papers to PW.5, who was the Commissioner in the
Social Welfare Department during the relevant period.
PW.5 after going through the reports and the
documents has issued sanction to prosecute the
accused.
6. PW.1-Jagadeesh, is working as a FDC in the
Block Education Office, Gulbarga. He has stated before
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the Court that he was summoned to the Lokayuktha
Office on 27.2.2006. In the said office, the Inspector
received 8 notes of `500/- denomination from the
Complainant and he applied powder to the said notes.
Thereafter, PW.1 had witnessed the preparation of the
sample and other materials for the purpose of laying a
trap on the accused. PW.1 has also identified the notes
in the presence of PW.6-Chandrakanth and thereafter
they went to the office of accused along with shadow
witness and other witnesses. PW.1 has however has not
supported the case of prosecution in full. He is
supposed to have stated that he was present with the
Inspector when the complainant reported about the
handing over the notes by him to the accused after
coming out of the office of accused. However, in the
Court he has not supported the case of prosecution that
he had heard the Complainant reporting about the
handing over of the notes to accused. He has stated that
he has not seen the complainant inside the office of
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accused when he entered the said office. He has also
stated that he has not heard as to what was spoken by
the complainant and PW.2-Venugopal with the
Inspector. The Special Public Prosecutor of Lokayuktha
had thoroughly cross-examined this PW.1 in the wake of
his becoming hostile to the case of prosecution and in
the wake of his denial to support the case of
complainant-PW.3.
7. PW.2-Venugopal is the Junior Assistant in
GESCOM., Yadgir. PW.2 has also been summoned to
the office of Lokayuktha, Yadgir. He has also stated
regarding the contents of Ex.P1-entrustment Mahazar.
He has stated before the Court that after reaching the
office where the accused were working, he waited
outside the office of accused and as soon as the
complainant came out of the office of accused, he also
went forward. However, PW.2 has turned hostile to the
case of prosecution regarding the particular facts of the
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case viz., handing over of the money to the accused by
the complainant on the demand made by the accused at
the time of acceptance of the tainted notes.
8. PW.3-Zulfikar Ali is the Complainant. He has
deposed as per the complaint and has stated before the
Court that a sum of `3,300/- was due to him by the
Social Welfare Department and when he requested the
Zilla Panchayath Chief Secretary, the latter had
immediately passed the bill and sent the same to the
office of accused for disbursement. However, since he
was not given the necessary cheque, he went to the
office of the Lokayuktha and gave a complaint as per
Ex.P5. PW.3 however has turned hostile to the case of
prosecution so far as his complaint before the police is
concerned and also regarding the claim he has in
respect of the rent payable to him by the other accused.
PW.3 being the Complainant has completely turned
hostile regarding demand and acceptance of the bribe
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amount by the accused. He has been subjected to
cross-examination by the Public Prosecutor.
9. PW.4-Subhaschandra is the Head Constable
of Karnataka Lokayuktha, Gulbarga. On 27.2.2006, he
has been to the Yadgir Police Station. It is in his
evidence that he has assisted the investigation done by
PW.6 by following him till the scene of occurrence. It is
in the evidence of PW.4 that the notes which were
tendered to the accused were tainted with
phenolphthalein powder and since the accused took the
notes in his hands, the sodium bicarbonate solution
turned into pink colour indicating therein that the
accused had accepted the bribe amount as offered by
the complainant.
10. PW.5-Yogendra Tripathi is the officer
authorised to sanction the prosecution against the
appellants and accordingly he has issued to sanction to
prosecute the accused as per Exs.P6, P7 and P8.
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11. PW.6-Chandrakanth is the Inspector of
Police, who on receipt of a typed complaint from PW.3,
registered the case and thereafter conducted the entire
investigation including preparation of entrustment
mahazar, going to the office of accused, laying a trap,
seizure of the currency notes from the accused, holding
a FSL test regarding the origin of notes. PW.6 has also
categorically stated regarding handing over of the
currency notes by PW.3 to the accused and also the
recovery of the amount from the possession of accused.
He has further stated that the resultant solution after
dipping the hands of the accused in sodium bicarbonate
solution turned into pink colour, thus, indicating that
the accused/appellants have accepted the bribe amount
as per their demand made by PW.3. PW.4 has thereafter
obtained statements from the accused in the languages
known to them. It is in the evidence of PW.6 that after
conducting the raid, he has arrested the accused and
produced them before the Court. In the cross-
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examination of PW.6, it is suggested that a false case
has been filed against the accused and that no such
incident has ever happened. It is also suggested to
PW.6 that the work of PW.3 was already over by the
time the raid was conducted and that there was no
scope for demanding the bribe amount from the
complainant. The aforesaid suggestions are denied by
PW.6.
12. It is from the above evidence that the learned
Special Judge has found the accused guilty.
13. Heard Sri Baburao Mangane, learned
Counsel for the appellants and Sri A.Syed Habeeb,
learned Special Public Prosecutor for the
Respondent/Lokayukta.
14. Sri Baburao Mangane, learned counsel for
the appellants submitted that in this case both the
complainant and the shadow witness have turned
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hostile to the case of prosecution and therefore the
prosecution has utterly failed to prove that there was a
demand and acceptance of illegal gratification.
Therefore, provisions of PC Act are not attracted in this
case. It is further submitted that the sanction order is
vitiated for non-application of mind. Under the
circumstances, it is submitted that the accused may be
acquitted.
15. Sri Baburao Mangane, learned counsel for
the appellants has relied on the following rulings:-
(i) (2010) ACR 481 in the case of Banarsi
Dass v. State of Haryana, in which, it is
stated as follows:-
“A. Prevention of Corruption
Act, 1947-Section 5(2)-Penal
Code, 1860-Section 161-Bribe-
Demand and acceptance of bribe-
Conviction and sentence-Two
witnesses including shadow
witness turned hostile-To
constitute an offence under
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Section 161 of the IPC it is
necessary for prosecution to prove
that there was demand of money
and same was voluntarily
accepted by accused-Similarly, in
terms of Section 5(1)(d) of P.C. Act
demand and acceptance of money
for doing a favour in discharge of
its official duties is sine qua non to
conviction of accused-High Court
has fallen in error in so far as it
has drawn inference of demand
and receipt of illegal gratification
from fact that money was
recovered from accused-Benefit of
doubt on technical ground
extended to accused-Appellant
acquitted-Appeal allowed.
B. Criminal Law-
Conviction-Conviction of an
accused cannot be founded on
basis of inference-Offence should
be proved against accused beyond
reasonable doubt either by direct
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evidence or even by circumstantial
evidence if each link of chain of
events is established pointing
towards guilt of accused-
Prosecution has to lead cogent
evidence in that regard so far as it
satisfies the essentials of a
complete chain duly supported by
appropriate evidence.”
(ii) (2009) ACR 956 in the case of State of
Maharashtra v. Dnyaneshwar Laxman
Rao Wankhede, in which, it is stated as
follows:-
“A. Prevention of Corruption
Act, 1988-Sections 7(1) and 20-
Criminal Procedure Code, 1973-
Section 378-Conviction for graft
charges-Acquittal by High Court-
Discrepancies in depositions of
prosecution witnesses-Version of
complainant not inspiring
confidence-Prosecution has failed
to prove its case-Even in a case
where burden is on accused,
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prosecution must prove
foundational facts-Where it is
possible to have both views, one
in favour of prosecution and
other in favour of accused, latter
should prevail-High Court has
taken into consideration legal
implication of provisions of
Section 20-Appeal dismissed.
C. Prevention of Corruption
Act, 1988-Sections 7(1) and 20-
Prosecution for demanding and
accepting illegal gratification-
Demand of illegal gratification is
a sine qua non for constitution of
an offence under provisions of
the Act-For arriving at conclusion
as to whether all ingredients of
an offence, demand, acceptance
and recovery of amount of illegal
gratification have been satisfied
or not Court must take into
consideration the facts and
circumstances brought on record
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in their entirety-Presumptive
evidence, as is laid down in
Section 20 must also be taken
into consideration-But, then in
respect thereof, standard of
burden of proof on accused vis-à-
vis standard of burden of proof
on prosecution would differ-
Before, accused is called upon to
explain as to how amount in
question was found in his
possession, foundational facts
must be established by
prosecution-Even while invoking
provisions of Section 20, Court is
required to consider the
explanation offered by accused,
only on touchstone of
preponderance of probability and
not on touchstone of proof
beyond all reasonable doubts.”
(iii) 2013) Cr.R. 96 (Kant.) in the case of State
by Lokayuktha Police, Chickmagalur v.
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C.Seenappa and others, in which, it is
stated as follows:-
“Prevention of Corruption
Act, 1988-Sections 7 and 13(1)(d)
read with Sections 13(2) and 20-
Criminal Procedure Code, 1973-
Section 378-Illegal gratification-
Acquittal-Demand of illegal
gratification is a sine qua non for
constitution of offence under
Sections 7 and 13(1)(d)-Court
must take into consideration
entire record of case-Prosecution
failed to prove foundational facts
of demand and acceptance of
bribe amount-Mere recovery of
tainted currency notes from
possession of accused is not
sufficient to hold that there was
demand and acceptance of bribe
amount by him-To shift burden
on accused and apply the
presumption under Section 20,
prosecution must prove
foundational facts-No credible
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evidence in that regard is
forthcoming-Prosecution failed to
prove its case beyond all
reasonable doubts-Appeal
dismissed.”
16. Sri A. Syed Habeeb, learned Special Public
Prosecutor, on the other hand, submits that even
though the witnesses have turned hostile, the
prosecution papers reveal a perfect case of commission
of offence by both the accused. He submits that PWs.1
and 2 who are the supporting witnesses have
categorically stated regarding the entrustment mahazar
and the trap mahazar. The tainted money has been
recovered in their presence and therefore the evidence of
PWs.1 and 2 completely corroborates the case of the
prosecution. It is his further submission that though
the complainant-PW.3 has turned hostile to the case of
the prosecution, the circumstances proved by the
prosecution clearly lead to the inference that the
accused have demanded and accepted the bribe
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amount. He also submits that PW.5-Yogendra Tripathi
has carefully scrutinized the papers before according
sanction to prosecute the appellants of the offences
levelled against them. The said sanction orders have
been marked as Exs.P6 to P8. Hence, he submits that
there is no illegality or perversity in the order of
conviction passed by the learned Sessions Judge and
submits that the order of conviction may be sustained.
It is further submitted by the learned Counsel for
Lokayuktha that in this case provisions of Section 20 of
the PC Act fairly and squarely covers the act of the
accused. Accused have not denied the fact that they
were in possession of the money. Hence, in the absence
of any suggestion or proof that the money belonged to
them both the offenders are liable to be convicted for the
offence under Section 20 of PC Act and hence he prays
for dismissal of the appeal.
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17. He has cited the ruling reported in (2001)1
Supreme Court Cases 691 in the case of M. Narsinga
Rao v. State of A.P. in which, it is stated as follows:-
“14. When the sub-section deals with
legal presumption it is to be understood as in
terrorem i.e. in tone of a command that it has
to be presumed that the accused accepted
the gratification as a motive or reward for
doing or forbearing to do any official act etc.,
if the condition envisaged in the former part
of the section is satisfied. The only condition
for drawing such a legal presumption under
Section 20 is that during trial it should be
proved that the accused has accepted or
agreed to accept any gratification. The
section does not say that the said condition
should be satisfied through direct evidence.
Its only requirement is that it must be proved
that the accused has accepted or agreed to
accept gratification. Direct evidence is one of
the modes through which a fact can be
proved. But that is not the only mode
envisaged in the Evidence Act.”
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18. PW.3 is the Complainant. It is the case of
complainant that he is the owner of a house building,
which was given on rent to the Social Welfare
Department of Gulbarga District. The rent for the
building was payable by the Taluka Social Welfare
Department of Yadgir. He has stated in his complaint,
which is marked as Ex.P5 that the said house was given
on rent to the Department from 15.7.2004 on a monthly
rental of `3,300/-. The Department was using the said
building for running a Girls Hostel. However, till the
date of complaint namely., 27.2.2006, the Department
had not paid any rent to him and hence he approached
the Taluka Social Welfare Officer and thereafter to the
District Social Welfare Officer and ultimately he
contacted the Chief Executive Officer of the Zilla
Panchayath, Gulbarga and requested for payment of
rent. The said officer has directed the payment of rent
to the Complainant-PW.3 on 14.2.2006. The
Complainant approached the Taluka Social Welfare
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Officer and at that time the concerned case Worker-
Zakeer Hussain was present. The said Zakeer Hussain
asked him to contact the Taluka Social Welfare Officer
and accordingly he met the said officer. He is accused
No.1-Pandurang. The said accused summoned accused
No.2-Venkatesh and accused No.3-Zakeer Hussain and
directed them to prepare a bill for `61,050/- and for this
work, he informed PW.3-Complainant that they should
be paid at a rate of `3,000/- for himself; `2,000/- for
the Manager and `1,000/- to Zakeer Hussain. Thus in
all a sum of `6,000/- shall be paid by the Complainant
to them and at that time, the Complainant informed the
accused that since the said amount is too much he
requested them to receive a lesser amount and
accordingly it was agreed that the accused would do the
complainant’s work for a sum of `4,000/- which is a
sum of `2,000/- for himself; `1,000/- for the Manager
and `1,000/- for the clerk. PW.3 while deposing in the
witness box has given a complete go-bye to the aforesaid
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averments in the complaint. He has stated before the
Court that since the rent has not been approved the
accused has not given the rent to him. He has further
stated that the persons in the Social Welfare
Department were moving around without giving rent to
him. He has identified his signature as Ex.P5(a) and the
complaint as Ex.P5. However, so far as his going to the
office of Lokayuktha along with a sum of `4,000/- he
has not supported his own case while deposing before
the Court. He has stated that he does not remember as
to how many notes were there among the sum of
`4,000/- which was agreed to be paid. It is further
stated by PW.3 before the Court that when he
approached the first accused-Pandurang regarding his
work, first accused refused to take the money; both
second and third accused also refused to take the
money when he attempted to pay the money to accused
Nos.2 and 3. PW.3 has further given a go-by to his case
regarding the averments in the trap mahazar. He has
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specifically stated that he is not aware as to whose hand
wash was taken, he is unable to identify the alleged
notes, which was used for trapping the accused. In the
background of these materials, the learned Public
Prosecutor of Lokayuktha has sought for treating PW.3
as hostile and the Public Prosecutor was permitted to
cross-examine PW.3. In the cross-examination
conducted by the Public Prosecutor, PW.3 has totally
denied the averments regarding the commission of
offence by the accused. He has denied the fact that the
trap was conducted on that day and that money was
recovered from the accused.
19. PW.2-Venugopal is a shadow witness.
However, in the evidence of PW.2 also though in the
chief examination, he has stated that the Inspector
conducted the hand wash of the accused, removed the
notes from the shirt pocket of accused No.1, removed
the notes from the pocket of accused No.2 and so also
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that of accused No.3, the learned Public Prosecutor has
treated this PW.3 as hostile to the case of prosecution
and in the cross-examination conducted by the learned
Public Prosecutor, PW.2 has also not supported the case
of prosecution and has denied the averments made in
the trap mahazar. He has stated that he has not gone
inside the chamber of the accused when PW.3 was
required to hand over the bribe amount and further that
he has not witnessed the handing over of the money by
the complainant to the accused.
20. From the above evidence of PWs.2 and 3, the
shadow witness and the complainant respectively, it is
seen that the case of prosecution regarding the demand
and acceptance has not been proved beyond reasonable
doubt. The case of prosecution so far as the demand is
concerned has to be spoken by the complainant himself
because it is the complainant, who has approached the
accused for getting his rent. To this aspect, the
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Complainant has turned hostile to the case of
prosecution. There is no other witness to speak and to
corroborate the version of PW.3 and the complaint-
Ex.P5 that accused had demanded the bribe amount of
`4,000/- for preparing and passing the cheque of PW.3.
21. So far as the acceptance is concerned, the
prosecution has examined PWs.2 and 3. Though it is
the case of PW.3, in his complaint that the accused
have together demanded a sum of `4,000/-, PW.3 does
not support his own case while being examined in
Court. Hence, the aspect of acceptance also has not
been proved in this case. However, the learned Special
Public Prosecutor submits that the trial Court has
convicted the accused on the basis of complaint and
other documents to hold that the accused was in
possession of money for which no account was
forthcoming. Hence, he submits that the accused is
liable to be convicted under Section 20 of the PC Act.
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22. However, so far as the charge for demand
and acceptance is concerned, there is no cogent and
clear evidence and therefore the case of prosecution that
accused Nos.2 and 3 along with accused No.1
demanded and accepted a sum of `4,000/- for
preparing and passing the bill of the complainant
towards the rent payable to him for his house is not
proved beyond reasonable doubt and hence, the
appellants are entitled for an order of acquittal for the
said charge.
23. So far as the submission of the learned
Special Public Prosecutor that the appellants deserve to
be convicted for criminal misconduct, which is
punishable under Section 7 of the PC Act on the basis
of the recovery of the amount from them; Sri Baburao
Mangane, learned Counsel for the appellants draws the
attention of this Court to the Attendance Register-
Ex.P16, which indicates that on the date of incident i.e.,
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on 14.2.2006, as against the column pertaining to
accused No.2-Venkatesh, the word ‘T’ is mentioned,
which indicates that he was on tour. However, so far as
accused No.3 is concerned, there is an indication that
he has signed on that day, but it is not the case of the
prosecution that accused No.3-Zakeer Hussain has ever
demanded and accepted the amount. The case of the
Complainant is that Pandurang-accused No.1 who is
now dead had demanded the amount on his behalf and
on behalf of other two accused. In that view of the
matter, merely because there is documentary evidence
regarding the recovery of money from the possession of
accused Nos.2 and 3, it cannot be held that the said
amount is obtained by them through illegal or corrupt
means. In this context, the evidence of PWs.2 and 3
gains relevance. It is the case of PW.2 that when the
amount was tendered, accused have not only refused to
take the money, they also avoided the money being
entrusted into their pocket. Under the circumstances,
33
it cannot be said that the accused have been committed
criminal misconduct by possessing the amount. There is
no clear evidence as to who paid the amount and what
is the amount so paid among accused Nos.2 and 3.
Under the circumstances, having regard to the fact that
they have stated immediately after raid as per Exs.14
and 15 denying the demand or acceptance of money
and further fact that they have got themselves examined
as DWs.1 and 3 and got marked Ex.D1, which is the
certified copy of proceeding of CEO, ZP, I am of the view
that the prosecution has not proved the case against the
appellants even for offence under Section 7 read with
Section 20 of PC Act.
24. From what has been discussed above, it is
clear that the prosecution has not proved the case
against the appellants beyond reasonable doubt and
therefore they are entitled for an order of acquittal.
34
25. I have carefully gone through the Judgment
of conviction passed by the learned Special Judge. The
learned Special Judge has misdirected himself in
arriving at a conclusion, which is not based on the
evidence on record. The reasoning assigned by the
learned Special Judge is not in accordance with the
settled principles of law since there is no proof of
demand and acceptance of bribe amount and
necessarily the Judgment is perverse. In that view of
the matter, the Judgment of conviction and sentence
passed against the appellants is liable to be set aside.
26. In the result, the following order is passed:-
O R D E R
i) The appeal is allowed.
ii) The Judgment of conviction and order
of sentence imposed on the appellants
is hereby set aside and they are
acquitted of the offences leveled
against them.
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iii) Bail bond executed by them shall
stand discharged.
iv) Fine amount if any deposited shall be
refunded to them.
Sri A. Syed Habeeb, learned Special Public
Prosecutor submits that the Special Judge has directed
action to be taken against PWs.2 and 3 for committing
perjury. The said order of the learned Special Judge is
left undisturbed in the absence of any challenge by the
said witnesses.
Sd/-
JUDGE
cp*