R.B. Naik, J.
1. This is an appeal filed by the accused-appellant challenging the order of conviction and sentences passed by the learned Principal Sessions Judge Kolar dated 16-9-2003 in C.C. No. 4/1998 convicting the accused-appellant for the offence punishable Under Section 7, 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo simple imprisonment for a period of six months and to pay fine of Rs. 2,000/-, in default to pay the fine, he shall undergo simple imprisonment for a further period of 3 months for the offence punishable Under Section 7 of Prevention of Corruption Act, 1988. Further, the accused-appellant is sentenced to undergo simple imprisonment for a period of 6 months and to pay fine of Rs. 2,000/-, in default to pay the fine he shall further undergo simple imprisonment for a period of 3 months for the offence punishable Under Section 13(1)(d) r/w. Section 13(2) of Prevention of Corruption Act, 1988. The substantive sentences shall run concurrently.
2. As the above two appeals arise out of the same judgment and as the common questions of law and facts arise for consideration, these appeals are heard together and disposed by this common judgment.
3. The case of the prosecution in brief is that during 1997, accused-appellant herein was working as Village Accountant of Sanganahalli village in Bangarpet Taluk. While the accused-appellant discharging his duty as a public servant, complainant Srinivasa (PW. 5) who owns land-bearing Sy. No. 4/2 of Sanganahalli to an extent of 0-20 guntas had applied for certified copy of the RTC, for availing loan for rearing Silk Worms as per Ex.P.6 07-4-1997. The accused-appellant being the Village Accountant who is competent to issue those documents as demanded by the complainant Srinivas demanded illegal gratification of Rs. 1000/- and accepted a sum of Rs. 500/- on 7-4-1997. On 28-4-1997, the complainant had gone to the office of the accused and requested him to issue the documents sought by him for which, accused told the complainant that he would issue the documents if he paid the balance amount of Rs. 500/-. Since the complainant was not desirous to pay the amount in question, he approached the Lokayukta Police and lodged complaint as per Ex.P. 7 on 30-4-1997. P.W. 6 Police Inspector, Lokayukta, Kolar received the said complaint and registered a case in crime No. 6/1997. He summoned the panchas and prepared pre-trap mahazar in the presence of panchas as per Ex.P.4 and after applying the Phenolphtholepin powder to the five notes of Rs. 100/- denomination he put the sample chemical solution into bottle as per MO. 1 and the procedure of trap was explained to the complainant and panch witnesses. Then thereafter, he along with panch witness proceeded to the work place of accused i.e., Bangarpet and reached there at 4.30 p.m. On enquiry, they were informed that the accused had been to the office of the Assistant Commissioner Kolar and therefore, they proceeded to office of the Assistant Commissioner, Kolar. The investigation officer instructed the complainant (PW.5) and shadow witness (PW.3) to see as to whether accused is available in the office of the Assistant Commissioner and they (raiding team) were waiting near the compound of that office. The complainant (PW.5) went inside the office of the Assistant Commissioner, Kolar and informed the accused-appellant that he had brought the money as demanded by him and the certified copies as demanded by him should be issued to him on the very day, as they were urgently required for him to avail loan. After receiving the amount paid by the complainant, the accused kept it in his left side pocket in his pant. Then thereafter, on receiving the pre-organized signal from the complainant, the investigation team went near the accused, the complainant stated that he handed over the currency notes, which were applied with Phenolphtholepin powder. As there was some inconvenience to complete the mahazar process, the accused-appellant was taken to nearby Forest department office wherein, after obtaining permission from the officials of the forest department, the Sodium Carbonate wash was given to the hands of the accused which turned into pink colour and the ample of solution of sodium carbonate was stored in a bottle the same is marked as MO.2 and colour turned and uncolored sodium carbonate solutions were stored in two different bottles, they are marked as Mos. 3 and 4. On production of the five hundred rupees of 100 denomination currency notes by the accused they were compared with the currency note numbers mentioned in pre-trap mahazar Ex.P. 4, they were tallying and they were seized under mahazar Ex.P. 8. Then thereafter, after providing alternative clothes to the accused, the pant worn by him was removed and the pocket portion of the said pant was subjected to sodium carbonate liquid wash and the same turned into pink colour and the portion of saidliquidwassealedinabottleasperM.0.5and6. The investigation officer recorded the statements of the complainant (PW.5) and the shadow witness P.W. 3. As the accused did not give any explanation, he obtained the relevant documents from the accused and after recording the statements of other witnesses and after completing the investigation, charge sheet came to be filed against the accused for the offences punishable Under Section 7, 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988.
4. On filing of the charge sheet, the Trial Court framed the charges against the accused for the above said offences. As the accused pleaded not guilty and claimed to be tried, he was tried for the charges levelled against him. The prosecution in support of its case has examined as many as 7 witnesses, got exhibited Exs. P.1. to P. 10 and got marked M.Os. 1 to 8. On behalf of the accused-appellant, one Lakshminarayana has been examined as D.W. 1. On appreciation of the oral and documentary evidence let in by the prosecution, the trial Court has convicted the accused-appellant and sentenced him as stated supra. Being aggrieved by the Judgment of conviction and sentence the accused has preferred Criminal Appeal No. 1528/2003. Whereas, challenging the quantum of punishment imposed upon the accused, the State has preferred Criminal Appeal No. 266/2004.
5. Heard the learned Counsel for the appellant-accused and the learned Counsel appearing for the Lokayuktha police and perused the material on record.
6. P.W. 1 S.A.P. Khadar has given evidence to the effect that he was working as chemical examiner, Government of Karnataka and on receipt of 8 sealed articles from the investigating agency he subjected those articles for chemical analysis. On examination, he detected the presence of Phenolphtholepin and sodium carbonate in the article sent and that the seal found on the articles tallied with the sample seal sent separately. Accordingly, he submitted his report as per Ex.P.1 and he identified the 8 articles as Mos. 1 to 6. In the cross-examination of this witness it was suggested to him by the defence that the solution in 4 bottles is colourless, for which, he replied that one bottle (MO.2) is colourless and the other bottle (MO.3) contained light pink colour liquid. He denied the suggestion that to oblige Lokayuktha Police, he is deposing falsely against the accused.
7. P.W. 2 Mehaboob Khan who is the Junior Engineer of Public Works Department has prepared the sketch of scene of occurrence as per Ex.P2, as requested by the investigation officer. In the cross-examination of this witness it is suggested by the defence that the distance between the place where the accused was and shadow witness is about 5 feet and the distance between the accused and complainant is shown to be about 2 feet and the distance between the raiding team and the accused was about 15 feet. He has denied the suggestion that he did not visit the spot and he has prepared the sketch at his office to oblige the Lokayukhta police.
8. PW.3 Jayaramareddy who was working as storekeeper in the office of the Land Army is a shadow witness in the case. He has given evidence to the effect that on 30-4-1997, he was summoned to the Lokayukhta office at Kolar from his place of work at 3.30 p.m. and also another witness (CW.3) Narayanaswamy wherein the complainant (PW.5) was also present. The police informed them about the accused-appellant demanding bribe money and they explained the method of trapping. Thereafter the complainant PW.5 hand over Rs. 500/- or (Rs. 100/- denomination) and PW.6 the investigation officer smeared Phenolphtholepin powder to those currency notes and kept it in the pocket of complainant. Then thereafter, they went to the office of the accused-appellant and on enquiry they found that accused had gone to the office of the Assistant Commissioner, Kolar and they reached the Kolar at 4.30 p.m. PW 6 (CW.13) instructed the complainant PW. 5 to find out as to whether the accused in available in the office or not, the complainant in turn informed that accused is available in the office. Complainant brought the accused outside the office and then they went about 50 feet from the office. He denied the fact of he having seen the complainant (PW.5) giving money to the accused. He has stated that CW. 13 (PW.6) asked him to go near the place where the accused-appellant was and accordingly, he went there and caught hold the accused and the Lokayuktha police also arrived at the place and thereafter, in a jeep, all of them went to the forest office. PW. 6 took Rs. 500/- from the pocket of accused and those notes are marked as MO.8 and drew mahazar Ex.P.3 for which, he subscribed his signature. The pant (M0.7) worn by the accused was seized. Thereafter, the raiding team subjected the hands of the accused to sodium carbonate solution wash and the same turned into pink colour and the said solution was put into different bottles and seized. As PW. 3 did not support the case of the prosecution in its entirety, particularly, as he deposed that he had not seen the accused receiving the money from the complainant, he has been treated hostile by the prosecution and he has been cross-examined by the Public Prosecutor. In the cross-examination he has admitted drawing up of pre-trap mahazar Ex.P.4 in the Lokayuktha office and he subscribed his signature to the same as Ex.P.4(a). He has denied the statement made to the police as per Ex.P.5 to the effect that he had seen the accused demanding money and acceptance of money from the complainant PW.5.
He was also cross-examined by the defence and in the cross-examination by the defence it is brought on record that he did accompany the Lokayuktha police to the office of the Assistant Commissioner and that he was standing about two feet away from the main entrance of A.C. office. It is further elicited in his cross-examination by the defence that CW. 13 (PW.6) took the money from the pocket of accused and thereafter the hands of the accused was subjected to solution wash which turned into pink colour. Therefore, the answer elicited in the cross-examination of this witness corroborates the case of the prosecution.
9. PW. 4 Vinod Reddy who was working as the Deputy Tahsildar at Kyasamballi at the relevant point of time has given evidence to the effect that the Sanganahalli village in which the accused-appellant was working as Village Accountant comes within his jurisdiction. The accused-appellant is entrusted with the work of issuing RTC, collect revenue and maintain the records. The Lokayuktha police enquired about the specimen handwriting and signature of the accused. On verification of Ex.P.6, the application submitted by the complainant he found that the same contained the signature of the accused. He has further stated that if anybody applied for certified of Pahani (RTC), the same should be given to the applicants within one week. He identified the signature of the accused in Ex.P.6 and the same is marked as Ex.P6 (a). In the cross-examination of this witness it is suggested to him that every application should be accompanied by the necessary stamps and he has admitted the same. He has also admitted that the application Ex.P.6. filed by the complainant was not accompanied/affixed with any stamp, which is required to be produced along with the application.
10. PW.5 S.N. Sreenivasa is the complainant in the case. He has stated in his evidence that he made a requisition for issuance of the copies of the Pahani records in respect of his land bearing Sy. No. 4/2 of Sanganahalli village as per Ex.P.6 as the same was necessary for him to avail the loan from Bank and the said application has been received by the accused-appellant. At the time of receipt of the application (Ex.P.6), the accused demanded bribe money of Rs. 1000/- for issuance of the said document and on the date of the application, he gave Rs. 500/- as demanded by the accused-appellant. Again he met the accused on 28-4-1997 and at that time, the accused informed him that he would furnish the said document only after complainant paid the remaining money of Rs. 500/-. As the complainant was not willing to pay the money, he lodged complaint before the Lokayuktha police on 30-4-1997 at about 3.00 p.m., as per Ex.P.7.
He has further deposed that after receipt of the complaint, the Lokayuktha police summoned other witnesses namely PW. 3 and CW.3 and in their presence, Rs. 500/- (Rs. 100/- denomination) was taken by the police and the contents of the complaint submitted by him was read over to the witnesses. Thereafter, Phenolphtholepin powder was smeared to the said currency notes. The complainant and the witnesses were told that if any body touches the said notes and if their hands were washed with Sodium Carbonate the same would turn into pink colour. After making pre-trap mahazar, complainant, the witnesses and the raiding parties went to Bangarpet at 4.00 p.m. As the accused was not there and as he had been to the office of the Assistant Commissioner, Kolar, they went to the office of the Assistant Commissioner, Kolar. As instructed by the Lokayuktha police he met the accused in the office of the A.C. After seeing him, the accused came out of the A.C. office and the complainant requested him to furnish the copies of pahani on the very day, as the same were required to be produced to the Bank and told the accused that he had brought the money as demanded by him and handed over Rs. 500/-(Rs. 100/- denomination) which were smeared with Phenolphtholepin powder to the accused-appellant. The accused-appellant took the money and kept it in left side pocket of his pant. At that time, P.W.3 (shadow witness) was standing at about 5-6 feet away from them. After accepting said Rs. 500/-, the accused-appellant instructed him to come to his office on the next day and again tried to go inside the A.C. office. At that time, the Lokayuktha Police came and apprehended him. The complainant told the police that accused-appellant is Mohan Pillai. Then thereafter, the accused-appellant, witnesses and the complainant were taken to the forest office and the police requested the officials of the forest department to allow them to draw mahazar in the said office. The police took the currency notes from the possession of the accused-appellant and after providing one panche to accused, they took his pant and a wash was given to the pant pocket and the same turned into pink colour; that a wash was given to the hands of the appellant-accused and the solution was put into separate bottles and mahazar was drawn as per Ex.P.3. The complainant PW. 5 has identified the material objects Mos. 1 to 8 in the Court.
The complainant (PW.5) has been extensively cross-examined by the defence and it is brought out in his cross-examination that when he gave Rs. 500/- to the appellant-accused, none was present; that complainant is well aware that an application for certified of copies of the records should be accompanied by requisite stamps and that he has not affixed requisite stamp along with his application Ex.P6, but however, he has replied that the accused-appellant himself informed him that he (accused) himself would take stamps and furnish the pahani extract sought by him from the amount of Rs. 500/- already paid by him. It is also suggested to PW. 5 that he had informed the appellant-accused that he (PW.5) would bring necessary stamps and hand over the same to accused that accused had not given the documents sought by him, as he (PW.5) had failed to furnish the stamps. All these suggestions have been denie4 by the complainant. Further, it is suggested to him that on 28-4-1997 when he went to the office of the accused at about 12.00 p.m. none was present with him and that on the said date the accused had not demanded any money nor he had received any money from the complainant and that the accused-appellant was not at all in his office on 28-4-1997, as he was entrusted with APMC, election duty. PW.5-complainant has denied the above suggestions. It is further suggested to PW. 5 in the cross-examination that Ex.P7 complaint is in his own handwriting and that Rs. 500/-notes were given to the hands of witness who in turn kept the same in the pocket of the complainant; that he does not know who informed him in the office of the accused that he (accused) had gone to Kolar; that he did not call the accused from the office of the Assistant Commissioner, Kolar, but the accused himself came out of the A.C. office after seeing him and at that time, PW. 3 was present near the flag hosting pole and that the police were at a distance of about 25.30 feet near the compound; that after receipt of money by the accused the police arrived at the place and apprehended the accused; the appellant-accused received money from him on the right side of the flag hosting pole and immediately thereafter the Lokayuktha police and PW. 3 came to the spot; that several people gathered at the said place; that complainant (PW.5) does not know as to who took the money from the accused-appellant when they reached the forest office; that after giving wash to the hands of the accused-appellant the liquid solution was sealed in different bottles and the same is marked as MO.5 and by the time mahazar was drawn, it was 7.30 p.m. Further, it is brought on record in the cross-examination of PW. 5 that the land in Sy. No. 11 in respect of which pahani records were asked for is inam land and that the father of the complainant had purchased the same and there is a dispute in respect of the said land and that there is an entry to the effect that it is thoti inam land in the revenue records and that the same is not re-granted to the complainant or any of his family members; that because it is not re-granted, the pahani records and katha cannot be made in the name of complainant and his family members. That being the position, only with an intention to cause harm to the accused he (PW.5) lodged false complaint to the higher officer of the accused. The complainant (PW.5) has denied all these suggestions put forth by the defence. It is also suggested that the complainant forcibly touched the money into the pocket of accused; that he also threatened the accused that he would lodge complainant against him; that he is in the habit of threatening the people of his village. The complainant PW. 5 has denied these suggestions. It is also suggested that to get his work done, PW. 5 lodged false complaint and that he has also lodged complaint against one Venkataramanappa; that no demonstration was held in the Lokayuktha office and no sodium carbonate wash was given to the hands and the pant of the accused-appellant at the forest office and only because the appellant-accused did not issue the documents as requested by him, he lodged false complaint against the accused.
The above suggestion put forth in the cross-examination of the complainant (PW.5) reveal that the accused-appellant has taken inconsistent defence. At one stage, it is suggested that no money was received by the accused-appellant and at another stage, it is suggested that money was forcibly pressed into the pocket of the accused-appellant. It is also suggested that the accused-appellant received the money near the right side of flag hosting post in front of the office of the Assistant Commissioner. These suggestions coupled with fact that the money was recovered from the possession of the appellant-accused clearly go to establish that the accused-appellant had received the money and the said money (Rs. 500/-) was in possession of the accused.
11. PW.6 D. Lokesh is the investigation officer he has given evidence to the effect that on 30-4-1997 at about 3.00 p.m. the complainant (PW.5) approached him and lodged complaint as per Ex.P.7 and on receipt of the same, he registered a case in crime No. 6/1997, forwarded the FIR (Ex.P.8) to the jurisdictional Magistrate, he summoned the panch witness (PW. 3 & CW.3) and after introducing them to PW.5 the contents of the complaint was read over to them. The complainant PW. 5 produced Rs. 500/- (Rs. 100/- denomination) which was smeared with Phenolphtholepin powder and after briefing the method of trap to complainant and panch witness he prepared pre-trap mahazar, entrustment mahazar (Ex.P.4). He along with witnesses visited the office of the accused and thereafter, to the office of the Assistant Commissioner, Kolar; he sent the complainant to ascertain as to whether accused is available in that office; at about 5.30 p.m. accused-appellant came out of the A.C. office along with the complainant and PW. 3 followed the accused and after PW.5 gave Pre-organized signal to him, himself and his staff and the witnesses went to the place where the accused and PW. 5 were standing and he was informed by the complainant that he handed over Rs. 500/- to the accused. He introduced himself to the appellant-accused and caused the formal arrest of the accused. As there were several people gathered at the place of occurrence and as there was some inconvenience to complete the formalities of the trap mahazar in the office of the Assistant Commissioner, he took the accused, complainant and the raiding parties to nearby forest office and after requesting the officials of the forest department he prepared sodium carbonate solution and put the said solution into two different bottles and sealed the same as MO.2. Thereafter, he gave a wash to the right hand of the accused-appellant, which turned into pink colour; both the solutions were put into two separate bottles, which were marked as M.Os. 3 and 4; he demanded the accused-appellant to produce the money and he took out the money from left pocket of his pant which were seized under mahazar Ex.P. 4 and they were marked as M.O 8; after providing alternative clothes to accused, he gave wash to the pocket of the pant of the accused which also turned into pink colour and the solution was put into a bottle and the same is marked as MO.5; he gave wash to the right hand of the complainant PW.5 and the same turned into pink, he collected the said solution in a bottle and sealed as at M06; he recorded the statements of PW.5 and 3 including the explanation offered by the accused as per Ex.P.3. On 1-5-1987 accused produced the document i.e., application filed by the complainant as per Ex.P.6 and he seized the same; that the seized articles were sent to FSL., he got the spot sketch prepared from the Engineer of Public Works department; after receipt of FSL report and after receipt of sanction order from the Deputy Commissioner (PW.7) to prosecute the accused and after completing the investigation, filed charge sheet against the accused-appellant.
PW. 6, the investigation officer has been extensively cross-examined by the defence. It is elicited in the cross-examination of this witness that he was standing about 20 feet away from the place of arrest of accused; accused himself came out of the A.C. office and another witness PW. 3 was standing at about 20 feet away from the place where the appellant-accused and the complainant were talking and that he could not hear what they are talking with each other; that he was accompanied 4-5 officials of his police station, several person started gathering at the spot where the trap was conducted. It is also suggested that accused-appellant did not receive any money from the complainant and that no such incident had occurred; that the appellant-accused was forcibly taken to the forest office and that the currency notes were forcibly touched to the hands of accused and thereafter forcibly the money was touched into the pocket of accused. It is further suggested that when the hands and pant of the accused were subjected to wash, the wash did not turn into pink colour. All these suggestions were denied by PW.6. The above two suggestions put forth by the defence i.e., the currency notes were forcibly touched to the hands of the accused and thereafter those notes were forcibly touched into the pocket of the accused and that when the solution wash was given to the hands and pant of the accused, it did not turn into pink colour are contrary to each other. If really the notes were given to the hands of the accused and they were later forcibly touched into his pant pocket, the other suggestions that the solution wash did not turn into pink colour does not arise. It is also suggested to the investigation officer PW. 6 that pre-trap mahazar was not drawn, which suggestion has been denied by PW.6. The other suggestion that the complainant has not affixed necessary stamps on the application (Ex.6) filed by him and because of such reason, there was a delay in furnishing the pahani records as requested by the complainant cannot be accepted for the reason that the complainant himself has explained in his cross-examination that accused who had received Rs. 500/- advance informed him that he would organize the stamps and pahani copies proforma from the said amount of Rs. 500/- and thereafter furnish those documents to the complainant.
12. P.W. 7 Mohammed Kashim is the Deputy Commissioner of Kolar district. He has given evidence to the effect that he was working as the Deputy Commissioner between 20-5-1997 to 15-5-1998 and during that period, the accused was working as Village Accountant; that he* is the appointing authority as well as the administrative authority to take action against the accused; that on 28-11-1997 the IGR, Lokayuktha Bangalore sent a communication along with the investigation papers pertaining to the said case and requested him to accord sanction to prosecute the accused. Then thereafter, he summoned the records from the local Lokayuktha police, Kolar and on consideration and verification of the relevant records he accorded permission to prosecute and to file charge sheet against the accused as per Ex.P. 9.
In the cross examination of this witness it is suggested that in Ex.P. 9 there is no mention with regard to what papers that were forwarded by the Lokayuktha police in his sanctioned order Ex.P. 9. It is also suggested that the investigation report does not show prima facie case against the accused. The said suggestions have been denied by him.
13. The defence has examined one Lakshminarayana who was working as First Division Assistant in the Taluk Office at Kolar as D.W. 1 to substantiate that on 28-4-1997, the accused-appellant has been deputed for counting of votes in respect of the APMC, election and therefore, it is improbable for the accused-appellant to meet the complainant and receive the advance amount of Rs. 500/- from the complainant PW. 5. He has stated in his evidence that on 28-4-1997 he and the accused were deputed to election duty at Bangarpet APMC., and the counting of votes was going on between 8.00 a.m. to 5.00 pm and till the completion of the counting of votes, the accused-appellant did not go away from the counting area at any point of time.
He has been cross-examined by the public prosecutor. When he was asked whether any written order was issued appointing him and accused as counting officer, he has stated that he has not retained the order. He has admitted that a written requisition or order is issued if an official is deputed for election duty. In the absence of any such written orders, the evidence of this witness would not in any way be helpful to the defence.
14. On the basis of the material on record and on appreciation of the evidence of PWs. 1 to 7 the Trial Court arrived at a conclusion that the accused-appellant is guilty of having committed the offence punishable Under Section 7, 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988 and sentenced him as herein stated before.
15. I have heard the learned Counsel appearing for the accused-appellant and the learned Advocate appearing for the Lokayuktha and perused the material on record.
16. Sri D. Krishnamurthy learned Counsel appearing for the accused-appellant (in Crl. A. No. 1528/2003), relying upon the Judgment of the Hon'ble Supreme Court reported in Som Prakash v. State of Punjab : 1992CriLJ490 has contended that independent witnesses should have been examined in the present case. The said decision will not be helpful to the appellant-accused since PW.3 who is an independent witness has been examined in the present case and handing over money to accused by PW.5 is believable. He has also relied upon the judgment reported in Mariswamy v. State by Deputy Superintendent of Police Lokayuktha, Mangalore 2005 (1) Acquittal-288 and has contended that as the stamp paper was not affixed to the application seeking the certified copy of the RTS records, there was a delay in furnishing the copies and further, mere recovery of currency notes and though the hand wash test was positive itself is not the conclusive proof of the guilt of the accused. The said judgment is also not applicable to the case of appellant-accused, since he has taken inconsistent stand in his defence. At one point, he has stated that the money was touched to his hand and then thereafter the notes were touched into his pocket and on the other hand he contended that the wash given to his hand and pant did not turn into pink colour. He has also suggested to the complainant (PW.5) that the money was taken by him near flag post. He further submits that the appreciation of the evidence by the Court below is not just and proper, as the same is not done in proper perspective and therefore, the finding of the Court below is liable to be set aside.
17. Per contra, Sri S.G. Rajendra Reddy learned Counsel appearing for the Lokayuktha has relied upon the judgment of the Hon'ble Supreme Court reported in State of A.P. v. C. Uma Maheshwara Rao and Anr. 2004 SCC (Cri) 1276 and has contended that presumption arises if the money is found in the possession of the accused. In the instant case also, it is not disputed that money was recovered from the possession of the appellant-accused. Thus, as held by the Hon'ble Supreme Court, presumption as provided under Section 20 arises against the appellant/accused that he demanded and accepted bribe money to do an official favour to the complainant PW.5. He further argued that the quantum of sentence imposed upon the accused by the Court below for the proved charges is not proper and the same is liable to be modified.
18. On re-appreciation of the evidence of the prosecution witnesses particularly, the evidence of the complainant PW.5, I find that the complainant submitted application on 7-4-1997 as per Ex.P.6 to the accused-appellant requesting him to issue pahani records in respect of the land comprised in Sy. No. 4/2 of Sanganahalli village as the same was required by him to avail loan from the Bank. The evidence of PW. 5 clearly reveals that on the date of application, the accused demanded bribe of Rs. 1000/- and the complainant paid a sum of Rs. 500/- and when the complainant met the accused again on 28-4-1997 the accused told the complainant that if he paid the remaining amount of Rs. 500/-, he will furnish the Pahani records. As the complainant PW.5. was not desirous to pay the balance bribe amount of Rs. 500/-, he approached the Lokayuktha police on 30-4-1997 lodged a complaint at about 3.00 p.m. before Lokayuktha police as per Ex.P. 7. On the basis of the said complaint PW. 6 summoned PW.3 and C.W.3, prepared pre-trap mahazar as per Ex.P.3 and after holding demonstration before the witness with regard to method of trap and after drawing entrustment mahazar they went to the office of the accused and on gathering information that accused had gone to the office of the Assistant Commissioner, Kolar, they proceeded to the Assistant Commissioner's office. After seeing the complainant, the accused came out of the said office. The complainant (PW.5) told the accused-appellant that he had brought the balance of money to be paid and that the documents sought by him in his application Ex.P.6 are to be furnished immediately. The accused-appellant received the amount of Rs. 500/- which was smeared Phenolphtholepin powder and kept it in left side pocket or his pant and immediately after receipt of Pre-organized signal from the complainant, the raiding party i.e., PWs. 3 and 6 went to the spot and they took him to the forest office for completing the formalities of drawing of mahazar and in the said office, the accused was asked to give the currency notes and he removed Rs. 500/- from left side pocket of his pant and gave it to PW.6 and on comparison of the numbers found on the said notes, the same tallied with the numbers mentioned in pre-trap mahazar. Thereafter, sodium carbonate wash was given to the hands of the accused-appellant as well as the pant of the accused and the same turned into pink colour and the solutions were put into two bottles. After recording the statements of witnesses, the investigation officer forwarded the sealed articles for chemical examination. The chemical examiner PW. 1 has furnished a report as per Ex.P.1 and the report reveal that results as follows:
-------------------------------------------------------------------------Sl. Article Physical appearance Test for Test forNo. No. pehnolph- sodiumtholepin cardonate-------------------------------------------------------------------------1. I Pink colour solution Positive Positive2. II Colourless solution Negative Positive3. III Pull Milky solution Positive Positive4. IV Light Pink colour solution Positive Positive5. V Currency notes Positive Negative6. VI Light Pink colour solution Positive Positive7. VII. Bundle with pant Positive Negative8. VIII Pink colour solution Positive Positive-------------------------------------------------------------------------
Opinion: The presence of phenolphtholepin is detected in the right and left hand fingers was of the AGO.
Results of the articles: The presence of phenolphtholepin and sodium carbonate is detected in the article bearing numbers 1, 3, 4, 6 and 8.
The presence of phenolphtholepin is detected in the articles bearing numbers 5 & 7.
The presence of sodium carbonate only is detected in the Article bearing numbers 2.
The number of currency notes along with their denominations seized during the trap tallies with that of the numbers of currency notes along with their denominations mentioned in the invoice.
19. The report of the chemical examiner indicate that MO. 1 hand wash solution of panch witness PW.3 had turned into pink colour. MO.3, hand wash given to the left hand of accused appellant had turned into pink colour. MO.4 wash given to right hand had turned into dirt colour. MO.5 wash given to the pant pocket had turned into pink colour. The above material coupled with the evidence of PW. 1 the chemical examiner and the investigating officer clearly establishes that the prosecution has successfully proved the trap, besides PW.6 the investigation officer has also sent a requisition to the Engineer to prepare sketch of scene of occurrence, which was drawn by PW. 2 as per Ex.P.2. The investigation officer, after receipt of chemical examination report as per Ex.P. 1. recorded the statement of the Deputy Tahsildar (PW.4) who has spoken about the entrustment of work to accused-appellant and identified the handwriting and signature of the accused on the application (Ex.P.6) filed by the complainant. Sanction order to prosecute the accused was obtained from PW. 7 as per Ex.P.9. All these materials coupled with the evidence of PW.5 and PW.6 conclusively prove that the accused-appellant has demanded and received bribe money and the trap led by PW.6 the Lokayuktha police is successfully established by the prosecution. Though the shadow witness (PW.3) has turned hostile as regards to the fact that he having seen the accused receiving Rs. 500/- from the complainant, his evidence corroborates the evidence of PW.5 the complainant on all other material facts i.e., with regard to the fact that pre-trap mahazar Ex.P.3 is conducted at the office of the Lokayuktha, thereafter the raiding party going to the office of the accused-appellant for laying the trap, accused-appellant coming out of the office of the Assistant Commissioner on seeing the complainant (PW.5), after the trap raiding party and the accused-appellant going to the office of the forest department, the investigation officer taking out Rs. 500/- from the possession of appellant-accused, drawing up of trap mahazar at the office of the forest department. Further PW.3 has identified the currency notes MO.8 which were seized under mahazar drawn at forest office for which he subscribed his signature. As he denied having seen the appellant-accused receiving the money from PW.5, he has been treated hostile by the prosecution. Barring this part of the evidence, the rest of his evidence corroborates the case of the prosecution. Merely because he denied having seen the appellant-accused receiving the money from PW.5 his entire evidence cannot be brushed aside, as he has corroborated the evidence of the complainant (PW.5) on all other material aspect.
20. It is clear from the evidence of the Deputy Tahsildar (PW. 4) who has stated the nature of the work of the appellant as Village Accountant. He has clearly stated that it is accused who has been entrusted with work of issuing the pahani documents as requested by PW.5 in Ex.P. 6 and he has identified the signature of the accused found on the said application Ex.P. 6. The defence taken by the accused is that for issuing certified copy, the applicant has to affix the requisite stamp and as the application filed by the complainant was not accompanied with the requisite stamp, there might have been some delay in issuing the said documents. The Complainant has stated in his evidence that at the time of receiving advance amount of Rs. 500/-, the accused informed him that he will organise the stamp and proforma of the pahani forms from the money received from the complainant. This evidence of PW.5 is plausible and there is no reason whatsoever to disbelieve his evidence.
21. For the foregoing reasons, I do not find any reasons to interfere with the findings recorded by the Court below that the prosecution has established the guilt of the accused beyond reasonable doubt and convicting the accused-appellant for the offences punishable Under Section 7, 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988. Consequently, the appeal filed by the accused-appellant (Criminal Appeal No. 1528/2003) is liable to be dismissed.
22. As regards the appeal preferred by the State in Criminal Appeal No. 266/2004, it is clear that the trial Court has committed an error in sentencing the accused for the offence punishable Under Section 7 and 13(1)(d) only for a period of six months on each count, though the prescribed punishment for the said offence is minimum one year. To the said extent, the Judgement of conviction and order of sentence passed by the Court below is liable to be modified. Hence, the following order is made.
23. The appeal preferred by the accused-appellant (Crl.A. No. 1528/2003) is dismissed. Criminal Appeal No. 266/2004 filed by the State is allowed in part. In modification of the sentence imposed upon the accused by the Trial Court, the accused is sentenced to undergo imprisonment for a period of one year and to pay fine of Rs. 2000/- and in default of payment of fine, he shall undergo simple imprisonment for a further period of three months for an offence punishable Under Section 7 of the Prevention of Corruption Act. The accused is sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2000/- and in default of payment of fine, he shall undergo simple imprisonment for a further period of three months for the offence punishable Under Section 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988. The substantive sentences shall run concurrently. The period of detention of accused if any shall be given set off as provided under Section 428 Criminal Procedure Code and the cash amount seized in the case shall be confiscated to the State.