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K.M. Prabhakar Vs. State of Karnataka

LegalCrystal Citation : legalcrystal.com/935219

Court : Karnataka Dharwad

Decided On : Feb-02-2011

Judge : ANAND BYRAREDDY

Appeal No. : Criminal Appeal No. 454 of 2004 connected with Criminal Appeal No.1283 of 2004

Appellant : K.M. Prabhakar

Respondent : State of Karnataka

Advocate for Pet/Ap. : For the Appellant: G.A. Holeyannavar, Advocate. For theRespondent: M.B. Kanavi, Advocate.

Judgement :

ANAND BYRAREDDY, J:

1. Heard the learned Counsel for the appellant and the leaned Counsel appearingfor the respondent.

2. These appeals are preferred in respect of the same judgment. The appeal in454/2004 is filed by the accused challenging the order of conviction insofar asoffence under Section 13(1)(d) punishable under Section 13(2) is concerned,whereas the appeal in 1283/2008 is filed, by the respondent in the first of theseappeals, challenging the acquittal of the accused under Section 7 of the Preventionof Corruption Act, 1988.

3. The brief facts of the case are as follows:

It is stated that the complainant, one Dattatreya Someshwara Hegde and his familyown 17 acres of land bearing survey Nos.110, 111, 91 and 92 in Mavinakoppa andSannikere villages. The complainant and his elder brother were cultivating theland and taking care of the affairs pertaining thereto. The complainant is said to bea graduate in Arts. In an area of 8 acres, the complainant and his family havegrown areca crop. In another extent of 3 acres, they have grown cardamom,pepper and banana in addition to areca crop. The father of the complainant hadapplied for a well subsidy on 15.02.1994 through the Field Officer, Spice Board,Sirsi, in the prescribed form. an estimate for digging the well was prepared by theEngineer of Zilla Parishad and submitted to the Spice Board. In the month of May1994, one Girish Kumar, Field Officer of the Spice Board had intimated thatapproval had been granted to dig the well by the Spice Board, Head Office, Cochinand accordingly, the well was dug in the land of the family of the complainant inthe month of May 1994.

During 1995, the accused Prabhakar had assumed charge as the Field Officer andhe had conducted inspection of the well. During August 1995, it transpires that the

Assistant Director of the Spice Board had also conducted a inspection.

The complainant’s family were to receive a sum of `12,260/- as a subsidy from theBoard and in this regard, the complainant had constantly followed up with theBoard and he had met the accused Prabhakar on several occasions. On 16.10.1995,when the complainant met the accused, he was informed by the accused that theentire subsidy amount would be released expeditiously and that the accused wouldensure the same, if he was paid a sum of `1,000/- and he had also assured that apre-receipt would be prepared once the amount is paid and the pre-receipt wouldbe forwarded to the Head Office, which is a prelude for release of the subsidy.When the complainant expressed his unwillingness, he was told that, unless theamount was paid, the work would not move ahead. It is in that background, thatthe complainant had lodged a complaint with the Central Bureau of Investigation.

Pursuant to the complaint on 19.10.1995, PW3 had made discreet inquiries andarranged for pancha witnesses to accompany at the intended trap of the accused.It transpires that on 20.10.1995, panchayatdars, the complainant at CBI officialsassembled in Room No.221 at Samrat Guest House, Sirsi and the complainant hadproduced the bribe amount and the same was entrusted to the complainant withappropriate instructions. The complainant went to the accused and requested himabout the work. The accused is said to have asked the complainant, whether hehad brought the bribe demanded by him. The complainant answered in theaffirmative and the bribe amount was handed over to him. It is at that time, whenthe accused had pocketed the said amount, that the officials and other witnessestrapped him and claimed that he was trapped red handed.

It is in the above background that the proceedings were initiated. A chargeultimately having been framed, the prosecution had examined PWs 1 to 7 andmarked documents at Exs.P1 to P25 and material objects at M.Os 1 to 6. The Courthad framed for itself the following points for consideration:

i. Whether the Sanction order Ex.P21 to prosecute the accused is legal and valid?

ii. Whether prosecution proves beyond all reasonable doubt that the accused beingin charge Field Officer, Spices Board, Sirsi, a Public Servant, on 16.10.1995 in theSpice Board, Office at Sirsi, demanded `1,000/- from the complainant DattatrayaSomeshwara Hegde, as a gratification other than remuneration as a motive orreward for showing official favour of arranging for early release of subsidy amountand on 20.10.1995 in the said office demanded and accepted `1,000/- from thecomplainant as illegal gratification other than legal remuneration for showingofficial favour referred to above and thereby committed the offences allegedagainst him?

On consideration of the material evidence and the rival contentions, the trial Courthas held that the ingredients of Section 7 of the Prevention of Corruption Act wereas follows:

a. That the accused is a public servant or excepted to be a public servant at thetime when the offence was committed;

In this case it is not disputed that the accused is a public servant.

b. The accused accepted or obtained or agreed to accept or attempted to obtainillegal gratification from some person;

The allegations in this case disclose that the accused accepted or obtained illegalgratification.

c. The next ingredient is that he accepted or obtained illegal gratification forhimself or for any other person;

In this case, the allegations show that he had accepted or obtained the saidamount for himself. Since, he did not disclose that the said amount is necessary forgiving it to any other person.

d. The next ingredient that is required to be proved by the prosecution is that thesaid gratification was not a remuneration to which the accused was legallyentitled;

The allegations in this case clearly disclose that `1,000/- is a gratification which isnot a remuneration to which the accused was legally entitled. The allegationsclearly disclose this ingredient.

e. The last ingredient that the prosecution is expected to prove is that the accusedaccepted such gratification as a motive or reward for doing or forbearing to do anofficial act doing or forbearing to show favour or disfavour to someone in theexercise of his official functions or rendering or attempting to render any serviceor disservice to someone with Central or any State government or Parliament orLegislature of any State of which any local authority, Corporation or Governmentcompany referred to in Sec.21 cl.(c) or with any public servant, whether named orotherwise.

The Court has opined that from the evidence on record, as on the date of trap, theaccused has done what was expected of him by forwarding all the documentsincluding the pre-receipt. As on that date, the accused was not in a position to door forbear to do an official act or to do or forbear to show favour or disfavour tothe complainant in exercise of his official functions. Therefore, it was held thatthere was no question of the accused having accepted the bribe amount as amotive or reward for doing or forbearing to do any official act or to show a favourto the complainant. In this regard, the Court has discussed the materialdocuments, that were made available on record to indicate that the accused had infact dispatched the pre-receipt much prior to the date of trap and therefore, thequestion of accused having demanded the bribe in order to fulfill this requirement,beyond which the accused had no role to play in the release of the subsidy, whichis normally released directly to the farmer, the Court below has expressed thatthere was no motive for him to seek bribe and hence has held that the ingredientsof Section 7 of the Prevention of Corruption Act were not attracted in the givencase on hand. However, the Court below has found that there was also a chargeunder Section 13(1)(d) punishable under Section 13(2) of the Prevention ofCorruption Act. Insofar as that charge is concerned, the Court has held that theprosecution was required to prove the following ingredients:

i. The accused should have held office as a Public Servant

ii. He should obtain any valuable thing or pecuniary advantage for himself or anyperson

iii. Such obtaining of valuable thing or pecuniary advantage is without any publicinterest.

And found that whether any work was pending with the accused or whether he wasin a position to do or forbear to do an official act or whether he was in a position todo a favour, becomes irrelevant under Section 13(1) of the Prevention ofCorruption Act and therefore, has proceeded to hold that, when the evidence of theprosecution has established that the bribe amount, which was treated withphenolphthalein powder was recovered from the possession of the accused, theingredients of Section 13(1)(d) and 13(2) are established. Therefore, the Courtbelow has thought it fit to acquit the accused insofar as Section 7 of the Act isconcerned and has held that the accused was liable to be convicted for the offenceunder Section 13(1)(d) punishable under Section 13(2) of the Prevention ofCorruption Act and accordingly, has held that the accused shall undergo rigorousimprisonment for a period of two years and to pay fine of `15,000/- and in defaultto undergo simple imprisonment for a period of three months for the offence underSection 13(1)(d) punishable under Section 13(2) of the Prevention of CorruptionAct. It is this portion of the judgment convicting the accused under Section 13(1)(d) punishable under Section 13(2) of the Act, that is challenged in the first ofthese appeals and the acquittal of the accused insofar as the offences punishableunder Section 7 of the Act is challenged in the second of these appeals.

4. The learned Counsel for the appellant on behalf of the accused would primarilycontend that the Court below having held that there was no occasion for demandand acceptance of a bribe, insofar as the accused was concerned, since it foundfrom the material on record that he had completed his part of the official work inrespect of which he could possibly have demanded the bribe. And that there wasno proof of the petitioner having demanded and accepted, the bribe. The mere factthat the alleged bribe amount was recovered from the person of the accused byitself would not bring home the charge insofar as Section 13(1)(d) punishableunder Section 13(2) is concerned. When the main accusation, was held by theCourt had not been proved, it is illegal to proceed independently on the footingthat the bribe amount has been recovered from the accused and therefore, he washeld liable for punishment under Section 13(2) for offences under Section 13(1)(d).He would submit that the reasoning of the Court as to the pendency of any workbeing irrelevant, insofar as the said Sections are concerned, is incorrect. Thelearned Counsel would take this Court through the tenor of Section 13(1)(d) readwith Section 13(2) and would point out that it is referable to Section 7 and thesame cannot be read independently to hold that the accused could be convictedindependently, when the charge insofar as Section 7 is held not proved. In thisregard, reliance is placed on at least two decisions of this Court recorded in Stateby Lokayuktha Police, Mandya Vs. K.M. Gangadhar, 2008 (2) KCCR 985 andStateof Karnataka Vs. K.T. Hanumanthaiah, 2006 (3) KCCR 1445. In these judgments, inidentical circumstances, where mere recovery of alleged bribe amount from theaccused having been held sufficient to bring home the charge under Section 13(1)(d) read with Section 13(2), this Court has held that recovery of bribe amount byitself would not be sufficient to convict the accused. He would also place relianceon other judgments to the similar effect.

5. While the learned Counsel appearing for the appellant-State would seek tocontend that, insofar as the acquittal of the accused on the footing that theaccused was no longer required to comply with any other official acts to demandand accept bribe, is an incorrect finding by the Court below. He would submit thatthe documents which were produced indicated as to the accused having completedhis part of the official work, which were required to be done insofar as the wellsubsidy due to the complainant’s family is concerned, the same was suppressed bythe accused and it was on a pretence that he was to send the pre-receipt, whichwas required for the Board to release the subsidy, that the demand and acceptancewas made and the money having been seized from the person of the accused and

when there are several witnesses in respect of the trap of the accused red handedwith the bribe amount, the Court was not justified in acquitting the accused insofaras Section 7 of the Preventions of Corruption Act is concerned. It is this primarycontention, which the learned Counsel for the appellant-State seeks to urge insofaras the second of these appeals is concerned.

6. The point for consideration that would arise would be whether, the trial court isjustified in acquitting the accused on the footing that, insofar as offencespunishable under Section 7 is concerned, there was material on record to indicatethat the accused was not in a position to demand and accept the bribe as evidentfrom the material on record. Therefore, it cannot be held that the charge wasproved beyond all reasonable doubt and yet proceeding to convict the accusedunder Section 13(1)(d) punishable under Section 3(2). The reasoning of the Courtthat the motive or the possibility of the petitioner being in a position to demand thesaid bribe for any official favour granted is irrelevant is an incorrect opinion.Section 13 itself, on a close reading, would indicate that it is always referable toSection 7 and when the Court had categorically found that the offence punishableunder Section 7 was not established beyond reasonable doubt, the question ofholding, that bribe amount was recovered from the person of the accused, he wasyet punishable is an incorrect opinion of the Court below and therefore, has lead tothis incorrect judgment insofar as the accused is concerned.

7. The next point for consideration is, whether the contention of the State thatthere was suppression by the accused of the fact that he had completed his part ofthe official work, in respect of which he could have demanded and accepted thebribe, is an argument put forth and cannot on the face of it be accepted. Thecomplainant being a literate person, was well versed with the procedure that wereto be followed in the release of the subsidy, could not have been misleaded (sicmisled) as sought to be contended by the learned Counsel for the appellant. It isonly at the trial that it has been demonstrated as to the accused having completedhis part of the work. Though an effort was made by the State at the trial to indicatethat there were still certain procedures to be completed, by the accused before theamount could be released, it was on the other hand demonstrated that he had infact completed his part of the work. Therefore, the ground raised by the State inthe second of these appeals is an after thought and a theory that is sought to beurged for the first time before this Court.

8. Accordingly, the appeal in Criminal Appeal No.454/2004 is allowed. Thejudgment insofar as it convicts the accused under Section 13(1)(d) punishableunder Section 13(2) of the Prevention of Corruption Act, 1988 is set aside. Theappellant is acquitted of the same and the bail bond furnished shall standcancelled. Insofar as the appeal in 1283/2004 is concerned, there is no merit in thesame and accordingly, stands dismissed.

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