ANAND BYRAREDDY, J:
1. Heard the learned Counsel for the appellant and the leaned Counsel appearing for the respondent.
2. These appeals are preferred in respect of the same judgment. The appeal in 454/2004 is filed by the accused challenging the order of conviction insofar as offence 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 these appeals, challenging the acquittal of the accused under Section 7 of the Prevention of 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 family own 17 acres of land bearing survey Nos.110, 111, 91 and 92 in Mavinakoppa and Sannikere villages. The complainant and his elder brother were cultivating the land and taking care of the affairs pertaining thereto. The complainant is said to be a graduate in Arts. In an area of 8 acres, the complainant and his family have grown 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 had applied 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 the Engineer of Zilla Parishad and submitted to the Spice Board. In the month of May 1994, one Girish Kumar, Field Officer of the Spice Board had intimated that approval had been granted to dig the well by the Spice Board, Head Office, Cochin and accordingly, the well was dug in the land of the family of the complainant in the month of May 1994.
During 1995, the accused Prabhakar had assumed charge as the Field Officer and he 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 the Board and in this regard, the complainant had constantly followed up with the Board 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 the entire subsidy amount would be released expeditiously and that the accused would ensure the same, if he was paid a sum of `1,000/- and he had also assured that a pre-receipt would be prepared once the amount is paid and the pre-receipt would be 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 the amount was paid, the work would not move ahead. It is in that background, that the complainant had lodged a complaint with the Central Bureau of Investigation.
Pursuant to the complaint on 19.10.1995, PW3 had made discreet inquiries and arranged for pancha witnesses to accompany at the intended trap of the accused. It transpires that on 20.10.1995, panchayatdars, the complainant at CBI officials assembled in Room No.221 at Samrat Guest House, Sirsi and the complainant had produced the bribe amount and the same was entrusted to the complainant with appropriate instructions. The complainant went to the accused and requested him about the work. The accused is said to have asked the complainant, whether he had brought the bribe demanded by him. The complainant answered in the affirmative and the bribe amount was handed over to him. It is at that time, when the accused had pocketed the said amount, that the officials and other witnesses trapped him and claimed that he was trapped red handed.
It is in the above background that the proceedings were initiated. A charge ultimately having been framed, the prosecution had examined PWs 1 to 7 and marked documents at Exs.P1 to P25 and material objects at M.Os 1 to 6. The Court had 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 being in charge Field Officer, Spices Board, Sirsi, a Public Servant, on 16.10.1995 in the Spice Board, Office at Sirsi, demanded `1,000/- from the complainant Dattatraya Someshwara Hegde, as a gratification other than remuneration as a motive or reward for showing official favour of arranging for early release of subsidy amount and on 20.10.1995 in the said office demanded and accepted `1,000/- from the complainant as illegal gratification other than legal remuneration for showing official favour referred to above and thereby committed the offences alleged against him?
On consideration of the material evidence and the rival contentions, the trial Court has held that the ingredients of Section 7 of the Prevention of Corruption Act were as follows:
a. That the accused is a public servant or excepted to be a public servant at the time 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 obtain illegal gratification from some person;
The allegations in this case disclose that the accused accepted or obtained illegal gratification.
c. The next ingredient is that he accepted or obtained illegal gratification for himself or for any other person;
In this case, the allegations show that he had accepted or obtained the said amount for himself. Since, he did not disclose that the said amount is necessary for giving it to any other person.
d. The next ingredient that is required to be proved by the prosecution is that the said gratification was not a remuneration to which the accused was legally entitled;
The allegations in this case clearly disclose that `1,000/- is a gratification which is not a remuneration to which the accused was legally entitled. The allegations clearly disclose this ingredient.
e. The last ingredient that the prosecution is expected to prove is that the accused accepted such gratification as a motive or reward for doing or forbearing to do an official act doing or forbearing to show favour or disfavour to someone in the exercise of his official functions or rendering or attempting to render any service or disservice to someone with Central or any State government or Parliament or Legislature of any State of which any local authority, Corporation or Government company referred to in Sec.21 cl.(c) or with any public servant, whether named or otherwise.
The Court has opined that from the evidence on record, as on the date of trap, the accused has done what was expected of him by forwarding all the documents including the pre-receipt. As on that date, the accused was not in a position to do or forbear to do an official act or to do or forbear to show favour or disfavour to the complainant in exercise of his official functions. Therefore, it was held that there was no question of the accused having accepted the bribe amount as a motive or reward for doing or forbearing to do any official act or to show a favour to the complainant. In this regard, the Court has discussed the material documents, that were made available on record to indicate that the accused had in fact dispatched the pre-receipt much prior to the date of trap and therefore, the question 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, which is normally released directly to the farmer, the Court below has expressed that there was no motive for him to seek bribe and hence has held that the ingredients of Section 7 of the Prevention of Corruption Act were not attracted in the given case on hand. However, the Court below has found that there was also a charge under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act. Insofar as that charge is concerned, the Court has held that the prosecution 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 any person
iii. Such obtaining of valuable thing or pecuniary advantage is without any public interest.
And found that whether any work was pending with the accused or whether he was in a position to do or forbear to do an official act or whether he was in a position to do a favour, becomes irrelevant under Section 13(1) of the Prevention of Corruption Act and therefore, has proceeded to hold that, when the evidence of the prosecution has established that the bribe amount, which was treated with phenolphthalein powder was recovered from the possession of the accused, the ingredients of Section 13(1)(d) and 13(2) are established. Therefore, the Court below has thought it fit to acquit the accused insofar as Section 7 of the Act is concerned and has held that the accused was liable to be convicted for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act and accordingly, has held that the accused shall undergo rigorous imprisonment for a period of two years and to pay fine of `15,000/- and in default to undergo simple imprisonment for a period of three months for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act. 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 of these appeals and the acquittal of the accused insofar as the offences punishable under 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 primarily contend that the Court below having held that there was no occasion for demand and acceptance of a bribe, insofar as the accused was concerned, since it found from the material on record that he had completed his part of the official work in respect of which he could possibly have demanded the bribe. And that there was no proof of the petitioner having demanded and accepted, the bribe. The mere fact that the alleged bribe amount was recovered from the person of the accused by itself would not bring home the charge insofar as Section 13(1)(d) punishable under Section 13(2) is concerned. When the main accusation, was held by the Court had not been proved, it is illegal to proceed independently on the footing that the bribe amount has been recovered from the accused and therefore, he was held 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 work being irrelevant, insofar as the said Sections are concerned, is incorrect. The learned Counsel would take this Court through the tenor of Section 13(1)(d) read with Section 13(2) and would point out that it is referable to Section 7 and the same cannot be read independently to hold that the accused could be convicted independently, when the charge insofar as Section 7 is held not proved. In this regard, reliance is placed on at least two decisions of this Court recorded in State by Lokayuktha Police, Mandya Vs. K.M. Gangadhar, 2008 (2) KCCR 985 andState of Karnataka Vs. K.T. Hanumanthaiah, 2006 (3) KCCR 1445. In these judgments, in identical circumstances, where mere recovery of alleged bribe amount from the accused 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 by itself would not be sufficient to convict the accused. He would also place reliance on other judgments to the similar effect.
5. While the learned Counsel appearing for the appellant-State would seek to contend that, insofar as the acquittal of the accused on the footing that the accused was no longer required to comply with any other official acts to demand and accept bribe, is an incorrect finding by the Court below. He would submit that the documents which were produced indicated as to the accused having completed his part of the official work, which were required to be done insofar as the well subsidy due to the complainant’s family is concerned, the same was suppressed by the accused and it was on a pretence that he was to send the pre-receipt, which was required for the Board to release the subsidy, that the demand and acceptance was 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 handed with the bribe amount, the Court was not justified in acquitting the accused insofar as Section 7 of the Preventions of Corruption Act is concerned. It is this primary contention, which the learned Counsel for the appellant-State seeks to urge insofar as the second of these appeals is concerned.
6. The point for consideration that would arise would be whether, the trial court is justified in acquitting the accused on the footing that, insofar as offences punishable under Section 7 is concerned, there was material on record to indicate that the accused was not in a position to demand and accept the bribe as evident from the material on record. Therefore, it cannot be held that the charge was proved beyond all reasonable doubt and yet proceeding to convict the accused under Section 13(1)(d) punishable under Section 3(2). The reasoning of the Court that the motive or the possibility of the petitioner being in a position to demand the said 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 to Section 7 and when the Court had categorically found that the offence punishable under Section 7 was not established beyond reasonable doubt, the question of holding, that bribe amount was recovered from the person of the accused, he was yet punishable is an incorrect opinion of the Court below and therefore, has lead to this incorrect judgment insofar as the accused is concerned.
7. The next point for consideration is, whether the contention of the State that there was suppression by the accused of the fact that he had completed his part of the official work, in respect of which he could have demanded and accepted the bribe, is an argument put forth and cannot on the face of it be accepted. The complainant being a literate person, was well versed with the procedure that were to be followed in the release of the subsidy, could not have been misleaded (sic misled) as sought to be contended by the learned Counsel for the appellant. It is only at the trial that it has been demonstrated as to the accused having completed his part of the work. Though an effort was made by the State at the trial to indicate that there were still certain procedures to be completed, by the accused before the amount could be released, it was on the other hand demonstrated that he had in fact completed his part of the work. Therefore, the ground raised by the State in the second of these appeals is an after thought and a theory that is sought to be urged for the first time before this Court.
8. Accordingly, the appeal in Criminal Appeal No.454/2004 is allowed. The judgment insofar as it convicts the accused under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 is set aside. The appellant is acquitted of the same and the bail bond furnished shall stand cancelled. Insofar as the appeal in 1283/2004 is concerned, there is no merit in the same and accordingly, stands dismissed.