Full Judgment
1 .Respondents 1 & 2 (hereinafter refilled to as 'accused 1 & 2') were tried and acquitted for offences under sections 7 and 13(l)(d)(ii), punishable under section 13(2) of the Prevention of Corruption Act. 1988 (for short, 'the Act'). Therefore. appellant/Lokayuktu police has filed this appeal.
2. 1 have heard Sri S.G.Rajendra Reddy. learned counsel for appellant/Lokayukta police and Sri S.K.Venkata Reddy, learned counsel for respondents 1 & 2/accused 1 & 2.
3. In brief, the case of prosecution is as follows: -
During the month of January 2000, leasehold rights of certain shops situate in Town Municipality Complex at Sira was sold in public auction. PW7-Mohammed Ibrahim was a successful bidder of shop No. 14 of the Town Municipal Complex at Sira. He had agreed to pay monthly rent of Rs.2.000/- and security deposit of Rs.4.25.000/-. Accused No. 1, who was the Chief Officer of Town Municipality at Sira, had to execute agreement of lease in favour of PW7 in respect of aforestated shop.
It is the case of prosecution that on 21.06.2001, FW7 had approached accused No. 1 and requested him to execute the agreement of lease. Accused No. 1 is alleged to have demanded a sum of Rs. 15,000/- as illegal gratification to execute the agreement of lease and on the same day, he received Rs.7,500/'- and demanded PW7 to bring Rs.7.500/-and assured to execute the agreement of lease in respect of aforestated shop. On 28.06.2001. PW7 had visited the office of Town Municipality of Sira and met accused No. 1. At that time, accused No. 1 again demanded PW7 to pay remaining part of bribe amount of Rs.7,500/-. PW7 not willing to bribe the accused No. 1, lodged first information as per Ex.P. 13 and set criminal law into motion. PW12-H.S.Manjunath, the then Police Inspector of Lokayukta at Tumkur secured parich witnesses namely PWl-Ramadasappa and PW9-M.H.Mahesh, explained contents of first information to them and made preparations to trap accused No. 1. PW12 smeared phenolphthalein powder to currency notes of Rs.7,GOO/- (one currency note of Rs. 1.000/- denomination, five currency notes of Rs.500/- denomination. 38 currency notes of Rs. 100/- denomination and four currency notes of Rs.50/-denomination) and entrusted the same to PW7 with a specific instruction io pay to accused No. 1 if it is demanded by him. The Police Inspector (PW12) had demonstrated phenolphthalein test to PW1. PW7 & PW9. PW12 reiterated instructions to PW7. FWi2 instructed PW1 to accompany PW7 to observe as to what would transpire between PW7 and accused No.l. PW7 and PVV1 entered the chamber of accused No. 1 and PW7 enquired accused No.l about the execution of agreement of lease. Accused No.l enquired PW7 about bribe amount. PW7 paid bribe amount to accused No.l. Accused No. 1 told PW7 to keep the same beneath a tray on the table in front of accused No.l. PW7 kept tainted currency notes beneath the tray. Accused No. 1 called accused No.2 and told him to keep tainted currency notes. When accused No.2 kept tainted currency notes in his shirt pocket and proceeding towards some other room in front of chamber of accused No.l. PW7 gave pre-determined signal to PW12. PW12 and other members of raiding party apprehended accused No.2 and recovered Rs.7.500/- from possession of accused Np.2. PW12 apprehended accused No.l and conducted phenolphthalein test by dipping fingers of both hands of accused No.l into a bow' containing sodium carbonate solution. The resultant solution turned into pink colour and resultant solution was collected in a separate bottle and the same was sealed. PWI2 also conducted phenolphthalein test by dipping fingers of both hands of accused No.2 into a bowl containing sodium carbonate solution. The resultant solution turned into pink colour and the same was collected in a separate bottle and the same was sealed. Further, shirt pocket of accused No.2 was also dipped into a separate bowl containing sodium carbonate solution, the resultant solution turned into pink colour and the resultant wash was collected in a separate bottle and the same was sealed. Accused No.2 made a statement that tainted currency notes were given by PW7 towards arrears of rent of shop No. 14 of Town Municipality Complex at Sira. Accused No.i had made a statement that he has been falsely implicated due to previous enmity. PW12 completed formalities and sent incriminating articles to Forensic Science Laboratory. After obtaining necessary sanction from PW8 to prosecute accused No.l and necessary sanction from PW10 to prosecute accused No.2. PW13-P.R.Pashupathi filed charge sheet against accused 1 & 2 for affforested offences.
4. During trial, on behalf of prosecution, PW1 to PW13 were examined and documents as per Ex.P. 1 to Ex.P.22 was marked so also material objects as per M.O.I to M.O.56 were marked.
5. The learned trial Judge on appreciation of evidence and on hearing learned counsel for parties acquitted accused 1 & 2.
6. In view of acquittal of accused 1 & 2. The following points would arise for determination:-
(1) Whether the prosecution has proved that on 21.06.2001, accused No.l being the Chief Officer of Town Municipality at Sira had demanded illegal gratification of Rs.15.000/-from PW7 as a motive or reward to execute the agreement of sale in respect of shop No. 14 and received a sum of Rs.7,500/- as illegal gratification on the same day?
(2) Whether his prosecution has proved in furtherance of such demand, on 28.06.2001. in the office of Town Municipality at Sira. accused No.l demanded and received remaining illegal gratification of Rs.7,500/-as a motive or reward to execute the agreement of lease in favour of PW7 and accused No.2 abetted commission of foretasted offences by keeping foretasted currency notes in his pocket, thereby accused 1 & 2 committed offences under sections 7 & 13(l)(d)(ii), punishable under section 13(2) of the Prevention of Corruption Act, 1988?
(3) Whether the prosecution has proved that accused No. 1 by misusing his official position had obtained pecuniary advantage of Rs. 15,000/- from PW7, thereby committed an offence under section 13(l)(d)(ii), punishable under section 13(2) of the Prevention of Corruption Act, 1988?
(4) Whether the learned trial Judge has properly appreciated evidence on record?
(5) Whether the impugned judgment calls for interference?
(6) What order?"
7. Before adverting to appreciation of evidence adduced by prosecution witnesses and findings recorded by the learned trial Judge, certain admitted facts established from evidence on record, which have not been disputed by either parties are stated as follows:-
PW7 was the successful bidder of shop No. 14 in public auction held in the month of January 2000 and he had agreed to deposit a sum of Rs.4.25.000/- as security deposit and pay monthly rent of Rs.2.000/-. PW7 was expected to pay security deposit within 15 days from the date of auction. On the other hand. PW7 paid security deposit on several installments as shown in Ex.P. 1 i reading as hereunder:-
1. 338977 03.02.2000 2.12.500.00
2. 340017 10.04.2000 90.000.00
3. 341001 11.05 2000 1.22,500.00
4,25,000.00
8. PW7 was net regular in payment of rents. As per receipts produced by PW7 marked as Ex.P.8 to Ex.P. 10. He had paid Rs.20,000/- towards rent though he was due in a sum of Rs.36.000/- as on 28.07.2001. PW7 for the reasons best known to him had not paid rents regularly to Town Municipality at Sira.
9. It is clear from the evidence of PW6 (the then Assistant Operator in Town Municipality at Sira) that PW7 was running a hardware shop; PW7 had raised unauthorized construction by encroaching municipal land in an extent of six feet width behind his shop and construction was raised above pipeline; therefore, the matter was brought to the notice of accused No. 1 (Chief Officer of Town Municipality at Sira): accused No.l, Health Inspector and an Engineer had inspected the place and found unauthorized construction raised by PW7; accused No. 1 in his capacity as a Chief Officer directed demolition of unauthorized construction raised by PW7: at the time of demolition, there was confrontation between accused No. 1 and PW7 and PW7 had challenged that he would see to accused No.l. The above facts have not been controverter by either party. Thus, we find on the date when first information was lodged by PW7. he had vengeance against accused No.l. Prosecution. I find though accused No.2 was alleged to be an
10. Now adverting the evidence adduced by prosecution. I find though to abettor, no charge was framed against accused No.2 and no evidence was let in against accused No.2 to prove abetment of commission of foretasted offences by accused No. i. Even when accused No.2 was examined under section 313 Cr.P.C. he was not questioned about his being an abettor of commission of aforestated offences by accused No.l. The learned trial Judge has proceeded on assumption that accused 1 & 2 have committed offences under sections 7 & 13(l)(d)(ii). Punishable under section 13(2) of the Act. In a way. the learned trial Judge has treated accused No.2. Who was an attender on par with accused No.l. Who was the Chief Officer of Town Municipality at Sira.
11. I notice from the evidence, none of the prosecution witnesses has deposed that accused No.2 had concealed tainted currency notes in his shirt pocket, knowing full well that accused No.l had accepted bribe amount from PW7. Even if it is assumed that accused No. 1 had received bribe, none of the prosecution witnesses has deposed that accused No.2 knowing full well that accused No. 1 had received bribe of Rs.7.500/- had concealed the same in his shirt pocket to aid or abet commission of foretasted offences- Virtually. there is no incriminating evidence against accused No.2. The Court below has ignored to frame specific charge against accused No.2. In the circumstances, I do not find any reasons to interfere with the acquittal of accused No.2.
12. Now adverting to evidence adduced against accused No.l, I find that prosecution has relied on the evidence given by PW1, PW7 & PW12. The evidence given by PW2 to PW4 relates to preparations made in the Office of Lokayukta to trap the accused, which has not been seriously controverter by the defense. The evidence given by PW5 is also not in dispute. As already stated, PW6 has given evidence relating to unauthorized construction raised by PW7 and demolition of the same at the instance of accused No. 1.
13. At the relevant time, PW8-Jagadish Joys, was working as Under Secretary in the Department of Urban Development. PW8 has deposed about sanction accorded by him in the name and by order of the Governor of Karnataka, to prosecute accused No. 1. PW8 has been cross-examined regarding procedure to be followed for according sanction to prosecute accused No.l. I do not find any infirmity in the sanction order. PW8 has deposed that he had placed relevant records before the concerned Minister, who or Verification of records accorded sanction to prosecute accused No.l. Thereafter, PW8 had issued sanction order by order and in the name of the Governor of Karnataka.
14. PW9-M.H.Mahesh was one of the witnesses in the raiding party.
15. PWlO-G.V.Kongawaria had accorded sanction to prosecute accused No.2.
16. In the discussion made supra. I have held that there is no material worth of consideration against accused no.2. even then PW10 has deposed that on consideration of relevant records, he was satisfied that there is prima facie case against accused No.2 and accorded sanction to prosecute accused No.2 for offences under sections 7 and 13(l)(d)(ii), punishable under section 13(2) of the Act, which are not at all attracted against accused No.2. Therefore it is less said the better about sanction accorded by PW10 to prosecute accused No.2.
17. PW11-G.Boraiah had furnished documents such as Attendance Register and Auction Register pertaining to the Office of Town Municipality at Sira.
18. PW12-H.S.Manjunath was the Investigating Officer. PW12 has given silence relating to investigation.
19. PW13 P.R.Fashupathi succeeded PW12. PW13 has submitted charge sheet after obtaining necessary sanction to prosecute accused 1 & 2.
20. In the discussion made supra, I have held that PW7 was defaulter in payment of rents and he had paid security deposit at his whim and fancy. It is seen from the contents of first information as per Ex.P. 13, PW7 had submitted an application to accused No. 1 to execute the agreement of lease in respect of shop No. 14 at Town Municipality Complex at Sira. On the said application, accused No. 1 had made an endorsement, directing PW7 to produce necessary stamp papers to execute the agreement of 'ease. From the contents of Ex.P. 13, I find, PW7 had committed default in payment of rents. PW7 was not even ready to accept rate of rent of Rs.2,000/- per month. PW7 was not paying rents regularly. As already stated, PW7 was due in a sum of Rs. 16,000/-towards arrears of rent as on 28.07.2001. PW7 has admitted that he had neither furnished stamp papers for execution of the agreement of lease nor paid rents regularly. PW7 has not deposed that accused No.l had told PW7 to pay illegal gratification of Rs.7,500/- on 21.06.2001. Therefore, it is clear that PW7 was aware of defaults committed by him. PW7 was also aware that he should have produced
necessary stamp papers for the execution of agreement of lease. In the circumstances, a reasonable doubt would arise as to whether PW7 had reasonable belief to seek official favour from accused No.l. so also reasonable doubt would arise as to whether accused No.l had any official duties to discharge in favour of PW7.
21. The prosecution in order to prove demand and acceptance of bribe by accused No. 1 has relied on the evidence of PW1, PW7 k PW12.
22. PWl-D.Ramadasappa has deposed; raiding party led by PW12 reached Sira, PW1 was asked to accompany PW7 to observe as to what would transpire between accused No.l & PW7 PW7 entered the chamber of accused No.l: PW1 was standing near the door. PW7 after meeting accused No.l, saluted accused No.l: accused No.l asked PW7 whether he had paid arrears of rent; PW7 replied that he had paid rents and showed a receipt; thereafter, accused No. 1 questioned PW7 innuendo (probably referring to bribe amount); accused No.l told PW7 to pay the same later; PW7 insisted that he had brought bribe amount and he would pay the same forthwith; accused No. 1 told PW7 to keep the bribe amount beneath the tray lying on his table: PW7 kept bribe amount beneath the tray: accused No. 1 called accused No.2. took the bribe amount and handed over the same to accused No.2 and asked him to keep the amount, with him, accused No.2 kept tainted currency notes in his shirt pocket; thereafter PW7 came out of the chamber of accused No. 1 and gave predetermined signal to PW12 by removing his cap: PW12 and other members of raiding party rushed to the office, held accused no.2, removed tainted currency notes from shirt pocket of accused No.2; fingers of accused 1 & 2 were dipped in two separate bowis containing sodium carbonate solution and resultant solutions turned into pink color and the same was collected in two separate bottles and they were scaled; the shirt pocket of accused No.2 was also dipped into a bowi containing sodium carbonate solution; the resultant solution turned into pink color the same was collected in a separate bottle and the bottle was sealed; the Investigating Officer collected necessary documents and completed other formalities of trap. During cross-examination. PW1 has admitted that he was standing near the door in the chamber of accused No.l. therefore, PW1 was not able to overhear conversation that took place between accused No. 1 and PW7; PWI has pleaded his ignorance to a specific suggestion that accused No. 1 was unable to execute the agreement of lease for non-payment of up-to-date rent and non-production of requisite stamp papers by PW7. PWI has deposed that accused No. 1 did not question PW7 whether he had brought bribe amount. PWI has admitted that when PW7 kept tainted currency notes beneath the tray on the table, accused No.l did not touch the same. PWI has admitted that door of the chamber of accused No.l was partially closed; by standing near the door. PWI was not able to notice as to what had transpired between accused No. 1 & PW7. Thus, I find evidence of PWI is not positive regarding demand and acceptance of bribe amount by accused No.l.
23. As per evidence of PWI, it is not clear as to what, had transpired between accused No.l and PW7 after PW7 entered the chamber of accused No.l. Contrary to this, PW7 has deposed that after PWI & PW7 entered Town Municipality at Sira, when they were entering the chamber of accused No.l, one of the attenders scolded them and they returned back. Again, PW7 entered the chamber of accused No.l at 4 p.m. Here I pause for a moment to state that PW7 has not deposed whether PW7 & PWI had gone out of Office of Town Municipality when the attender scolded them and when PWI entered the chamber of accused No.l, PW7 has not deposed that PWI had accompanied PW7 for the second time to the chamber of accused No.l. PW7 has deposed at 4 p.m., he met accused No. 1 in his chamber and requested accused No.l to execute the agreement of lease; accused No.l questioned PW7 if he has brought money; PW7 offered a sum of Rs.7,500/-; accused No. 1 told PW7 to pay the same in his house; PW7 insisted that he would pay money (bribe) forthwith; accused No.l told PW7 to keep money beneath the tray of his table; PW7 kept the money beneath tray; accused No.l called accused No.2: accused No.l removed tainted currency notes from beneath the tray and handed over the same to accused No 2 to keep the same in his shirt pocket; thereafter. PW7 came out of the chamber of accused No.l and gave a pre-determined signal to PWI2; thereafter. PW12 and other members of raiding party rushed to the chamber of accused No.l; at that time, accused No.2 was present in the hall; PW7 has deposed that accused No.2 was in possession of bribe amount; accused No.2 was apprehended and tainted currency notes were recovered from shiit pocket of accused No.2: PWI2 conducted phenolphthalein test by dipping the fingers of both hands of accused 1 & 2 in two separate bowls containing sodium carbonate solution and the resultant wash turned into pink colour; shirt pocket of accused No.2 was also dipped in a bowl containing sodium carbonate solution and the resultant wash turned into pink colour; the resultant wash was separately collected in bottles and they were sealed.
During cross-examination. PW7 has admitted that he had not paid security deposit on time and he had paid security deposit in several installments. PW7 has admitted that on 21.06.2001 when he had met accused No.l, accused No. 1 told PW7 that he was still due in a sum of Rs.8.000/-towards arrears of rents. PW7 has denied suggestion when he offered bribe amount to accused No.l, accused No.l called accused No.2 and asked him lo collect the money and pay the same to the Bill Collect Of towards arrears of rent payable by PW7. PV/7 has deposed that he had not paid up-to-date rents and he had not furnished necessary stamp papers for the execution of agreement of lease. PW7 has denied suggestion about unauthorised construction raised by him and demolition of the same at the instance of accused No. 1, which in fact has been categorically admitted by PW6.
24. PW12-H.S.Manjunath, the Investigating Officer has deposed; after raiding party reached Sira, the jeep was stopped at a distance from the office of Town Municipality;
PW12 asked PW7 & PWI to meet accused No. 1; at 4.25 p m PW7 came out of the office and gave a pre-determined signal to PW12; thereafter, PW12 and other members of raiding party entered the office of Town Municipality; PW7 pointed out at accused No.2 and told PWI2 that accused No.l had handed over tainted currency notes to accused No.2; PW12 apprehended accused No.2 and recovered tainted currency notes from his shirt pocket; PWI2 met accused No.l and introduced himself to accused No.l; thereafter PW12 conducted phenolphthalein test by dipping fingers of both hands of accused No.l in two bowls containing sodium carbonate solution, the resultant wash turned into pink color: the resultant wash was collected in two separate bottles and the same were sealed; PWI2 dipped the fingers of accused No.2 in two separate bowls containing sodium carbonate solutions and the resultant wash turned into pink color the resultant wash was collected in two separate bottles and the same were sealed: shirt pocket of accused No.2 was also dipped in a bowl containing sodium carbonate solution: the resultant wash turned into pink color and the resultant wash was collected in a separate bottle and the same was sealed; thereafter PWI2 collected necessary documents.
During cross-examination, PWI2 has admitted before the execution of agreement of lease. PW7 was required to pay arrears of rents. PW12 has admitted on 28.06.2001, PW7 was due in a sum of Rs.8.000/- towards arrears of rent. PW12 has admitted that PW7 had not paid security deposit on time PW7 had not furnished necessary stamp papers for the execution of agreement of lease. PWI2 was aware without furnishing stamp papers. PW7 should not have approached accused No.l to demand the execution of agreement of lease. PWI2 has deposed; when he apprehended accused No.2, accused No.2 was not in the chamber of accused No.l.
25. On careful consideration of evidence of PWI, PW7 & PWI2, I find glaring discrepancies, which would shake credibility of their evidence. PW7 has categorically admitted that he was due in arrears of rent. Accused No. 1 had not demanded bribe from PW7. PWI has categorically admitted that as he was standing near the door, he did not notice as to what had transpired between accused No. 1 and PW7. In the circumstances, the evidence of accused No.l calling accused No.2 and asked him to keep tainted currency notes with him looks highly improbable. PWI has categorically deposed; accused No.l had not questioned PW7 whether he had brought bribe amount. PWI has categorically admitted that PW7 had kept tainted currency notes beneath a tray on the table and accused No.l had not touched tainted currency notes. FW7 was aware of defaults committed by him. PW7 had not furnished stamp paper for execution of agreement of lease. Even if defaults committed by PW7 in payment of security deposit in several installments had been condoned. PW7 was aware that without paying arrears of rent, he could not have insisted accused No.l to execute the agreement of lease. PW7 was also aware that accused No. 1 was not in a position to execute the agreement of lease, without payment of arrears of rent. The evidence of PW7 that accused No. 1 told him to pay bribe amount later, but PW7 insisted accused No.l that he would pay bribe amount forthwith and kept the same beneath tray on the table, as instructed by accused No.l; accused No.2 kept tainted currency notes in his shirt pocket would lead to an inference that PW7 was interested in thrusting bribe amount to the hands of accused No. 1.
PW7 has deposed; at the first instance, PW7 was scolded by an attender in the Office of Town Municipality at Sira. Therefore, he returned back. PW7 has not deposed the place where he had gone and the place from where he returned back to office of Town Municipality for the second time. PW7 has not deposed that PW1 had accompanied PW7 when he entered the chamber of accused No. 1 for the second time. The evidence of PWI & PW7 that accused No.l at the first instance asked PW7 to pay the bribe later, again he told to keep bribe amount beneath tray on the table, and later accused No. 1 took the same and gave it to accused No.2 and told accused No.2 to keep the same in his shirt pocket looks incredible. If accused No.l had suspected PW7 and if he did not intend to touch bribe amount, he would have directed accused No.2 to take the bribe amount from beneath tray on the table. Therefore, version of PWI & PW7 that accused No.l removed bribe amount from beneath the tray and handed the same over to accused No.2 has been introduced to support phenolphthalein test conducted on fingers of both hands of accused No. l.
26. from the tenor of cross-examination of PWI. PW7 & PW12. Accused No. i has sought to establish that the amount that was offered by PW7 was towards arrears of rent. Therefore, accused No. 1 asked accused No.2 to receive the same and pay it to the Bill Collector for accepting the same towards arrears of rent, which in fact was due from PW7. In view of discrepant and distorted versions given by PWI, PW7 & PW12. Version of accused No.l appears to be probable.
27. The law is fairly well settled, defense version need not be proved to hilt. If the version of prosecution is discrepant and lacking in material particulars, a probable defense version could be accepted. Therefore. I am of the considered opinion that evidence of PWI, PW7 & PWI2 is hardly sufficient to prove that on 21.06.2001, accused No.l had demanded illegal gratification of Rs. 15.000/- as a motive or reward to execute the agreement of lease in favour of PW7 and in furtherance of the same, he had accepted a sum of Rs.7,500/- from PW7 on the same day. The evidence of PWI, PW7 & PWI2 is hardly sufficient to hold that on 28.06.2001 at about 4.25 p.m. m the chamber of accused No.l. Accused No.l had demanded and received Rs.7.500/- as remaining illegal gratification for the execution of agreement of lease in favour of PW7.
28. In view of the discrepant and incredible evidence adduced against accused no.l, total absence of incriminating evidence against accused No 2. I do not find any grounds to interfere with the impugned judgment. Points 1 to 4 are answered accordingly.
29. In the result, the appeal is dismissed.