State of Karnataka Vs. S.K. Shambappa - Court Judgment

1. This appeal filed by the State of Karnataka is against the judgment dated 13-2-2001 passed in Spl. C.C. No. 51 of 1999 by the special judge, Bengaluru Urban and Rural District, Bengaluru, acquitting the accused of the offences under Sections 7 and 13 (1) (d), punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 (for short, the Act ).

2. The fact of the matter is that the respondent was working as a First Division Assistant in the Office of the Superintendent of Police, Railways, Bengaluru. On 10-12-1997, it is alleged that the respondent demanded a bribe of Rs. 250/-, from Yogesh-P.W. 1, for the purpose of forwarding an application of his brother T. Mohana Gowda, concerning appointment for a job on compassionate ground i. e., on account of the death of their father Thimmegowda, who was working as a Head , Constable at Shivamogga Railway Police Station and expired on 14-2-1997. It was alleged by P.W. 1, that the respondent demanded and accepted bribe amount of Rs. 50/- and asked him to pay the balance amount, in the afternoon of the same day. Yogesh, not willing to pay the amount, lodged a complaint- Ex. P. 1, before the Lokayuktha Police. S.P. Nayak- P.W. 6 received the complaint and endorsed the same to P.W. 7, to register the case. B.P. Heraaje- P.W. 7 registered the case in Crime No. 45 of 1997 and dispatched the FIR-Ex. P. 11. By issuing the requisitions, as per Exs. P. 12 and P. 13, B. Rudrappa P.W. 2 and T. Murthappa- P.W. 4 were secured. P.W. 1having produced the two currency notes, the trap was arranged and Yogesh was handed over with the bait money /currency notes, smeared with phenolphthalein powder. Entrustment mahazar-Ex. P. 2 was prepared in the presence of Sri P. Murthappa- P.W. 4. B. Rudrappa- P.W. 2 was asked to accompany the complainant and be the shadow witness. B.P.Heraaje- P.W. 7, undertook the investigation. It is alleged that, on the afternoon of 10-12-1997, P.Ws. 1and 2 approached the respondent, who demanded and accepted the tainted currency notes and that P.W. 7 and his team rushed to the spot and recovered the tainted currency notes (M.O. 6) and (M.O. 7) from the respondent. A.L. Desai-P.W. 8, continued and completed the investigation and filed charge- sheet, after obtaining the sanction for prosecution (Ex. P. 9) from M. Lakshman- P.W. 3.

3. Cognizance of the offence was taken and summons was issued. The accused appeared and denied the allegations. Charge was framed for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act. The charge was denied by the accused. During trial, the prosecution examined 8 witness, as P.Ws. 1 to 8 and marked 16 documents, as Exs.P. 1 to P. 16 and 12 Material Objects, as M.Os. 1 to 12. During the questioning under Section 313 of Criminal Procedure Code, 1973 the accused denied the incriminating circumstances put to him, as appearing in the statements made by the prosecution witness. The accused filed a written statement.

4. By considering the rival contentions and the record of the case, the learned Trial Judge the following points for consideration :

(1) Whether the prosecution proves beyond reasonable doubt that the accused being a public servant working as First Division Assistant in the office of superintendent of Police, Railways, in the premises of Bangalore City Railway Station, while he was in his office on 10-12-1997 demanded the complainant- P.W. 1-Yogesh, of Harige Village, Shimoga District, to pay an illegal gratification of Rs. 250/- as a motive or reward to show an official favour for the purpose of forwarding the application of the complainant s brother seeking appointment on compassionate ground and accepted Rs. 50/- on the same day as part of the bribe amount and also demanded the remaining amount of Rs. 200/- on the same day and in furtherance of the said demand, on the same day at about 1.35 p.m. the accused demanded and accepted the remaining amount of Rs. 200/- from the complainant and thereby committed an offence under Section 7 of the prevention of Corruption Act?

(2) Whether the prosecution further proves beyond reasonable doubt that the accused has received a sum of Rs. 200/- from the complainant as gratification by means of corrupt or illegal means or otherwise abusing his position as a public servant obtained the said amount to himself as a pecuniary advantage on the above said date for the purpose of showing the official favour and thereby committed the criminal misconduct under Section 13 (2) of the said Act, 1988?

(3) Whether the prosecution establishes that the sanction order obtained to prosecute the accused is valid and proper?

(4) What order?

5. The special Judge analysed the evidence brought on record by the prosecution in great detail. Learned Trial Judge having considered the matter and finding that evidence of P.Ws. 1 and 7 cannot be made use of without corroboration to convict the accused and in view of prosecution s failure to establish its case beyond reasonable doubts, by the judgment dated 13-2-2001, acquitted the accused.

6. Sri. Venkatesh P. Dalwai, learned Advocate, contended that the Trial Court has committed error in acquitting the respondent, despite the material having been placed on record of the case, which clearly establishes the guilt of the accused. He submitted that the evidence brought on record establishes that there was a demand by the accused and acceptance of the bribe amount and hence, the judgment of acquittal passed being perverse is liable to be set aside and the respondent convicted and punished.

7. Sri. H.M. Thimmarayappa, learned Advocate, on the other hand strenuously contended that the trial Judge having objectively analysed the evidence and the prosecution materials being perfunctory and the essential ingredients to constitute the offence as statutory defined having not been established, is justified in passing the judgment of acquittal. Learned Counsel submitted that evidence of P.WS. 1, 2 and 7 is inconsistent and wholly unreliable and that P.W. 2 has not supported the prosecution case in its entirely. Learned Counsel pointed out that P.W. 4 also has not supported the prosecution case. Learned Advocate submitted that P.W. 3- the Sanctioning Authority, who issued the sanction order vide Ex. P. 9 having not been made available for cross- examination, his evidence is liable to be ignored and thus there being no sanction for prosecution of the public servant, there cannot be any prosecution of the respondent for the charged offences. Learned Advocate submitted that there being non- compliance of Section 19 of the Act, the appeal is liable to be dismissed in limine. Learned Counsel contended that P.W. 7 being of the rank of an Inspector and not authorised to investigate the case as per Section 17 of the Act, was incompetent to conduct the investigation. In support of the contention, reliance was placed on the decisions in: (i) State, Inspector of Police, Visakhapatnam v Surya Sankaram Karri (2006) 7 SCC 172 : 2006 AIR SCW 4576 : 2006 Cri. L.J. 4598 (SC) : (2006) 3 SCC (Cri.) 225 and (ii)State of Karnataka v B. Narayana Reddy 2002 (2) Kar. L.J. 80 :2002 Cri. L.J.845 (Kar.). Learned Counsel submitted that mere recovery of the alleged tainted money without there being any demand and voluntary acceptance by the respondent from P.W. 1, does not prove the guilt of the respondent. In support of the respondent s case, learned Advocate placed reliance on the decisions of the Apex Court and this Court, a reference to which would be made later.

8. Perused the record and considered the rival contentions. The points for consideration are :

(i) Whether the demand and acceptance of gratification has been proved by the prosecution and whether the presumption of offence alleged to have been committed by the respondent would arise?

(ii) Whether the finding recorded with regard to the validity of sanction for prosecution with reference to evidence of P.W. 3 is perverse and illegal and consequently the entire proceeding is void ab initio?

(iii) Whether the finding of acquittal recorded by the Trial Court calla for interference?

9. P.W. 1 is the complainant. Ex. P. 1 is the complainant. P.W. 1 has spoken about the entrustment of bait money and its payment to the accused. P.W. 1 s evidence has not been supported by P.W. 2- shadow witness, in material aspects. The inconsistencies in their statements has been pointed out by the learned trial Judge in paras 22 to 32 of the judgment and the same was not shown to be factually incorrect by the learned Advocate for appellant . Sri. Venkatesh P.Dalwai, did not contend that there is any misreading of evidence by the Trial Judge or the Trial Court having omitted from consideration any material evidence, to categorise the finding recorded on point Nos. 1 and 2 (extracted in para 4 supra), formulated for consideration, as perverse.

10. In Suraj Mal v The state (Delhi Administration) AIR 1979 SC 1408 : 1980 SCC (Cri.) 15+9 :1979 Cri. L.J. 1087 (SC): (1979) 4 SCC 725 , Apex Court has held that mere recovery of tainted money divorced from the circumstances under which it was paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. It has been further held that the mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

11. In the present case there is no credible evidence of the demanded and voluntary acceptance of gratification by the respondent, to do the official act. The application of T. Mohana Gowda having been received on 22-11-1997, was processed and submitted to the Superior Officer on 6-12-1997. Hence, the demand of the accused, as claimed by the prosecution is highly improbable.

12. In the absence of proof of demand, the question of raising the presumption under Section 20 of the Act would not arise and hence, the Trial Court has rightly not raised the presumption in terms of Section 20 of the Act.

13. P.W. 3 is the Sanctioning Authority. Ex. P. 9 is the Sanction Order. P.W. 3 was examined on 14-11-2000 and was cross-examined in part. Further cross-examination was deferred for want of properties. Thereafter, P.W. 3 has not appeared and waws not made available further cross examination. Hence, his evidence cannot be considered, as rightly contended by Sri H. M. Thimmarayappa.

14. Section 19 (1) of the Act postulates that no Court shall take cognizance of an offence punishable under section 7,10,11,13 and 15 alleged to have been committed by a public servant except with the previous sanction. Grant of sanction is not an idle formality. It is intended to provide safeguard to public servant against frivolous and vexatious litigation. Satisfaction of the Sanctioning Authority is essential validate the order of granting sanction. It is the burden of the prosecution to prove the validity of the sanction order i.e., Ex. P. 9 by examining P.W. 3. On account of non-appearance / production of P.W. 3, after 14-11-2000, his evidence cannot be considered. Hence, the prosecution has failed to prove that Ex. P. 9 is a valid order according sanction for prosecution of the accused.

15. In Mohd. Iqbal Ahmed v State of Andhra Pradesh AIR 1979 SC 677 1979 SCC (Cri.) 926 : 1979 Cri. L. J. 633 (SC) : (1979) 4 SCC 172, APEX Court has held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after being satisfied that a case for sanction has been made out constituting an offence and the same should be done in two ways; either : (i) by producing the original sanction; and (ii) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It was held therein, that any case instituted without a proper sanction must fail because the same being a manifest defect in the prosecution, the entire proceeding is rendered void ab initio.

16. Since P.W. 3 was not produced by the prosecution for further cross- examination, after 14-11-2000, it has failed to show the facts placed before the sanctioning Authority and the satisfaction arrived at by P.W. 3. Mere marking of Ex. P. 9 is insufficient. Mere marking of Ex. P. 9 does not dispense with its proof. The sanction for prosecution vide Ex. P. 9 having not been proved, the proceeding is illegal.

17. The learned Trial Judge has committed error in not noticing the material fact of P.W. 3 having remained absent after 14-11-2000 and the prosecution s failure to make P.W. 3 available for cross- examination. The finding recorded on Point No. 3 by relying upon the evidence of P. W. 3 and Ex. P. 9 and the finding recorded that the prosecution has established the sanction order and valid is wholly erroneous and illegal.

18. It is trite that the Appellate Court should bear in mind the presumption of innocence of the accused as the Trial Court s acquittal order bolsters the presumption of his innocence. In exceptional cases, where there are compelling circumstances and the judgment under appeal is perverse and for good and sufficient reasons, there can be interference. In the instant case, the judgment of acquittal passed by the Trail Court is a well- considered one and the reasons assigned in respect of Point Nos. 1 and 2, extracted supra, being not palpably wrong, there cannot be any interference with the order of acquittal.

In the result, the appeal is devoid of merit and is dismissed.