1 [CASE NUMBER] IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 05TH DAY OF JUNE, 2018 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL APPEAL NO.3644/2011 BETWEEN: [ENTITY] S/o Nirmalkumar, Age 35 years, Occ. FDA at BEO Office, Shorapur, Dist. Yadagir. Appellant (By Sri [ENTITY] and Sri [ENTITY], Advocates) AND: [ENTITY] by Special Prosecutor Lokayukta, Circuit Bench, Gulbarga. Respondent (By Sri [ENTITY], SPP) This Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure praying to set aside the impugned judgment of conviction and order of sentence dated 03.09.2011 and 06.09.2011 respectively passed in [CASE NUMBER] by the District and Sessions Judge, Yadgiri by allowing this appeal consequently acquit the appellant/accused of the charges leveled against him. 2 [CASE NUMBER] This Appeal is coming on for hearing this day, the Court delivered the following: JUDGMENT
This appeal arises out of the judgment and order of conviction and sentence dated 03.09.2011/ 06.09.2011 in [CASE NUMBER] passed by the District and Sessions Judge and Special Judge for the trial of the offence under the [ACT].
2. By the impugned judgment the trial court has convicted the appellant for the offences punishable under [SECTION] of [ACT] and [SECTION] of [ACT] and sentenced him to rigorous imprisonment in five years and fine of Rs.25,000/- for the offences punishable under [SECTION] and [SECTION] of [ACT] and also fine.
3. Appellant is accused before the Trial Court. For the purpose of convenience the appellant will be referred to with his rank before the Trial Court. At the relevant time the accused was working as First Division Assistant in the office of Block Education Officer, Surpur of Yadigiri District. PW.5 [ENTITY] was working as Assistant Teacher in Lower Primary School, Machagondal of Surpur Taluk.
4. PW.5 filed complaint Ex.P.29 before Lokayukta Police, Yadgiri alleging that on his application the Deputy Director of Public Instruction had sanctioned Government Provident Fund advance of Rs.20,000/- and sent the order to the office of Block Education Officer, Surpur under whose jurisdiction the complainant was working. According to the complainant the bill was to be forwarded to the Treasury for payment and the accused was the case worker in charge of the said file. It is further alleged that on 17.11.2006 when PW.5 visited the Block Education Officer's office and enquired the accused about his bill, accused demanded illegal gratification of Rs.1,000/- for submitting the GPF bill to the [ENTITY] Treasury Office and when complainant said that he does not possess Rs.1,000/-, the accused demanded that atleast he should pay Rs.800/-. PW.5 in the complaint states that as he is not willing to pay the bribe, he is filing the complaint.
5. On receiving the complaint CW.17 [ENTITY] the then Police Inspector of Lokayukta Police registered the FIR in [CASE NUMBER], secured PWs.1 and 6 as mahazar witnesses. Then CW.17 said to have conducted the entrustment mahazar Ex.P.1 and laid the trap. It is contended that during the trap the accused demanded and received bait money M.O.No.1 i.e., cash of Rs.800/- and the same was recovered drawing the trap mahazar Ex.P.2 in the presence of panchas PWs.1 and 6. Under the trap mahzar Ex.P.2 the Investigating Officer also seized the records pertaining to the bill of the complainant viz., Exs.P.14 to P.17 the service particulars etc., The Investigating Officer CW.17 during the trap sought the explanation of the accused regarding possession of the bait money and accused submitted the written explanation Ex.P.32 stating that the said sum constituted the loan borrowed by the complainant from him. CW.17 handed over the further investigation to PW.9. He conducted further investigation, secured the sanction order Ex.P.11 to prosecute the accused and filed the charge sheet.
6. The learned Special Judge on taking cognizance of the offences secured the accused and framed the following charge :-
"That you accused person on 18.11.2006 at about 2.00 p.m., at Shorapur in BEO office demanded Rs.800/- as illegal gratification in order to do official favour i.e., preparing and submitting GPF bill and accepted the amount of Rs.800/- in order to do official favour to complainant and thereby committed an offence punishable under [SECTION], [SECTION] of [ACT] and within my cognizance.
And I hereby direct that you be tried by me for the said charges.
7. The plea of the accused on charge was recorded. The accused denied charge and claimed trial. Therefore, the trial was conducted. To prove its case the prosecution got examined PWs.1 to 9, got marked Exs.P.1 to P.32 and M.O.Nos.1 to 9. Trial court examined the accused with reference to incriminating material. The accused submitted his defence statement in tune with Ex.P.32.
8. The trial court after hearing the parties by the impugned judgment and order of conviction and sentence convicted the accused and sentenced him holding that the demand and acceptance is proved by the evidence of PWs.1 and 5 and the explanation of the accused himself. The trial court further held that in view of the admission of the accused regarding receipt of the bait money presumption under [SECTION] of the [ACT] arises and the accused has failed to rebut the said presumption.
9. Sri [ENTITY], learned counsel for the appellants seeks to assail the impugned judgment and order of conviction and sentence on the following grounds :-
(A) The fact that accused being in a position to show an official favour to PW.5, the demand of bait money as illegal gratification is not proved by cogent and consistent evidence.
(B) PW.1 does not speak about demand of accused for bait money. PW.5 stated that he did not visit the office of accused on 17.11.2006.
(C) The presumption under [SECTION] [ACT] can be drawn only on proving the basic factors of [SECTION] [ACT] and unless the same is proved accused cannot be convicted only on the basis of recovery of bait money.
10. In support of his contention he relies upon the following judgments :-
(A) [PRECEDENT] 2 Supreme Court Cases (Cri) 1.
(B) Suryabhan /vs/ [ENTITY] of Maharashtra, 1995 CRI.L.J.107.
(C) [ENTITY] /vs/ [ENTITY] represented by Inspector of Police. A.P. (D) Unreported judgment in [ENTITY] s/o Chandasab Annigeri /vs/ [ENTITY] of Karnataka, [CASE NUMBER] D.D. 22.09.2012.
11. Per Contra Sri [ENTITY], Special Public Prosecutor for the respondent seeks to support and justify the judgment and order of conviction and sentence of the trial Court on the followings grounds:-
(A) The accused admits the recovery of bait money.
(B) The evidence on record shows that the accused was caseworker in-charge of the file of the complainant.
(C) His explanation is that he had lent money to the complainant, who is neither his friend nor well wisher is very unnatural.
Therefore, trial Court has rejected his explanation.
(D) Even assuming that Government Provident Fund bill of the complainant was delayed for want of signature of Block Education Officer, it was for the accused to place the same before the Block Education Officer for needful and he caused delay in rectification of bill. That circumstance shows that accused was in a position to show official favour.
(E) The evidence of PW.5/compalianant shows that on demand of illegal gratification, he passed the bait money to the accused. Thus evidence on record shows that basic facts of the accused being in a position to show the official favour to the complainant and demanded bait money are proved.
Having regard to these facts the trial Court was justified in raising presumption under [SECTION] [ACT].
(F) Accused failed to rebut the presumption available against him under [SECTION] [ACT] offering any explanation or producing satisfactory material on his loan theory.
12. In support of his arguments he relies upon the unreported judgment in [ENTITY] of Karnataka /vs/ [ENTITY] in [CASE NUMBER] D.D.21.01.2015.
13. Having regard to rival contentions, the question that arises for consideration is;
"Whether charge brought against the accused is proved beyond the reasonable doubt and whether there are grounds to interfere with the impugned judgment and order of conviction and sentence"?.
14. Accused does not dispute that he was working in office of Block Education Officer as First Division Assistant. Further he does not dispute that he was caseworker for Government Provident Fund files. The said position is further fortified by the evidence of PW.3-[ENTITY], the then Superintendent of Block Education Office, Surpur. He does not even dispute recovery of bait money, M.O.-1 from his possession on 18.11.2006 as stated under the Trap Panchanama Ex.P.2.
15. Defence of the accused is that he was not in a position to show any official favour to the complainant, since bill was pending for signature of Block Education Officer. His contention is that Block Education Officer had not signed the bill effectively, therefore the question of he forwarding the bill to the Treasury Office, Surpur does not arise.
16. His further contention is that complainant was kept under suspension due to his unauthorized absence from duty and his three months salary was not drawn. He contended that due to his financial crisis, complainant used to borrow hand-loan from him in a sum of Rs.100/- and Rs.200/- on various occasions. Similarly, on 17.11.2006 during his visit to the office, the complainant demanded for hand loan and when he declined, complainant went away abusing that he will return Rs.800/- on the next day. Accordingly, on 18.11.2006 when complainant was paying Rs.800/- he was caught. The very same contention is taken in his defence statement.
17. Since recovery of bait money is admitted detailed discussion or analysis regarding proof of pre- trap mahazar or chronology of the trap mahazar is not required. The only question to be considered is whether presumption under [SECTION] of [ACT] can be raised and if it can be raised against the accused whether that is rebutted by the accused.
18. [SECTION] of [ACT] reads as follows :-
"[SECTION] :- Where, in any trial of an offence punishable under [SECTION] or [SECTION] or [SECTION] or [SECTION] it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in [SECTION] or, as the case may be, without consideration or for a consideration which he knows to be inadequate".
19. Perusal of [SECTION] of [ACT], shows that the presumption can be raised if it is shown that, sum recovered, accepted/obtained by the accused, was a motive or reward as mentioned in [SECTION]. Therefore, [SECTION] of [ACT] is to be read with [SECTION].
20. The [SECTION] of [ACT] reads as follows :-
"7. Public Servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any [ENTITY] Government or Parliament or the Legislature of any [ENTITY] or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.
(a) xxx (b) xxx (c) xxx
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression."
21. Having regard to [SECTION] of [ACT] the burden of proving the basic fact that accused was in a position to show official favour to the complainant and he received the bait money demanding the same is lies upon the prosecution. The Hon'ble Supreme Court in this regard in [ENTITY] /vs/ [ENTITY] represented by [PRECEDENT] at Para No.24 to 27 held as under :-
"24. Submission of the learned counsel the [ENTITY] that presumption has rightly be raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. [SECTION] of the [ACT] provides for raising of a presumption only if a demand is proved. It reads as under :
"20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under [SECTION] or [SECTION] or [SECTION] or clause
(b) or [SECTION] it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in [SECTION] or, as the case may be without consideration or for a consideration which he knows to be inadequate."
25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution.
26. In M.S.Narayana Menon @ Moni /vs/ [ENTITY] of Kerala and another [(2006) 6 SCC. 39)], this Court held ;
'Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding." 27. In Union of India through Inspector, CBI /vs/ Purnandu Biswas
[(2005) 12 SCC 576)], it was opined ;
"In this case demand of illegal gratification by the respondent has not been proved.
Furthermore, [SECTION] of the Act is not attracted as the respondent had been charged for commission of an offence under [SECTION] read with [SECTION] of the Act".
(Emphasis supplied)
22. In the light of aforesaid judgment the Court has to see whether work of the complainant was pending with accused and he delayed the matter. The bill pertaining to Government Provident Fund for the transaction of the complainant is marked at Ex.P.15 and token is marked at Ex.P.14. Ex.P.15 shows that Block Education Officer the drawing officer of the bill has subscribed his signature only on the first page of the bill, but he has not signed the certification as required in Para Nos.1 and 2 of the second Page of the bill.
23. Further PW.3 stated that bill was delayed for want of signatures of the Block Education Officer. PW.3 in his cross-examination stated that omitted signatures on Ex.P.15 could not be taken, as Block Education Officer was not available in the office. Ex.P.13 is the zerox copy of attendance register of office of Block Education Officer. PW.3 stated that sanction order relating to complainant was received in the office of Block Education Officer on 09.11.2006. Ex.P.13 zerox copy of attendance register shows that Block Education Officer was on leave on 8th and 9th November 2006. Therefore, he subscribed his signature in the registered only on 10.11.2006. From 11.11.2006 to 18.11.2006 he has not subscribed his signature in the Attendance Register.
24. PW.3 in his cross-examination stated that accused had prepared bill and it was pending for signature of Block Education Officer, since he had not signed it completely. Though [ENTITY] stated that bill and token Exs.P.14 and 15 were recovered from custody of accused, PW.6 co-panch did not speak about recovery of Ex.P.14 and 15 from the custody of accused. PW.3 prosecution's own witness states that Exs.P.14 to 27 were received by Lokayukta Police from his custody. Therefore, basic fact that the bill was pending with accused and he was in a position to show official favour to the complainant is not proved beyond the reasonable doubt.
25. Investigating Officer CW-17 died before trial and he could not be summoned before the Court. Therefore, his evidence was not available to the court to ascertain whether Exs.P.14 and 15 were recovered from the custody of accused or custody of PW.3. Even in the evidence of PW.3 that point is not clarified. Thus prosecution has failed to prove the fact that file was pending with the accused and he was in a position to show official favour to the complainant.
26. So far as demand is concerned PW.1 solitary witness does not state that accused demanded illegal gratification. He says that the complainant asked whether work is done, accused stated that work is done, then complainant passed the money to the accused. Then the only available evidence regarding demand is that of PW.5 the complainant. No doubt he stated in the cross- examination that when he asked the accused if work is done, the accused asked whether he has brought the money, then he passed the money to the accused.
27. The question is whether solitary evidence of PW.3 can be believed. In the complaint PW.5 says that his Government Provident Fund amount was sanctioned on 07.10.2006 itself and copy was forwarded to the office of Block Education Officer. But PW.3 says that sanction order was received in the office on 09.11.2006. When PW.5 stated in the complaint that on 17.11.2006 he visited the office of Accused, the accused demanded bait money of Rs.1,000/-, in his cross-examination PW.5/ complainant denies that he visited the office on 17.11.2006. He says that on 17.11.2006 he has not visited the Block Education Office at all.
28. He admits that he had not attended his duty for three months, therefore his suspension was recommended to the higher officer. In his cross- examination, he states that after sanction of his bill in the Deputy Director of Public Instructions office, he did not visit the Block Education Office and enquire. He admits that the bill can be forwarded to the treasury office only on the Block Education Officer subscribing his signature.
29. PW-5 says that he had visited the Block Education Office and saw the accused one week prior to the complaint regarding his bill. As per PW-3's evidence one week prior to the complaint bill was still not received in the Block Education Office. When in the complaint he says that on 17.11.2006, during his visit accused demanded illegal ratification, in his cross- examination PW.5 states that he did not tell anybody about accused demanding bribe. To crown of these, in his cross-examination PW-5 states that Lokayukta Police did not confront him with the explanation Ex.P-32 given by the accused and seek his remarks on the same, which is contrary to the trap mahazar.
30. In [ENTITY]'s case referred to supra this Court has held that the testimony of the complainant requires corroboration by the evidence of the shadow witness regarding demand. It is held that the complainant is an interested witness. Paragraph No.15 of the said judgment in this regard reads as follows:-
"In a case of trap for the offence under [SECTION] of the Act, two witnesses are normally implanted. One is to accompany the complainant to witness what transpires between him and the accused. His assignment is to observe silently what transpires between them and to report it to the I.O. He, therefore, has to discharge a very solemn duty, and due credence is given to his version, which is used as an assurance to the evidence of the complainant. It is also for the reasons, complainant has always to be treated as a person interested in the outcome of prosecution it is he who has sought for prosecution of the accused. His version would be interested version and it is for this reason shadow witnesses are legally permissible to be implanted."
(Emphasis supplied)
31. Having regard to these facts and the judgment in [ENTITY]'s case referred to supra, the trial court was not justified in relying on the solitary evidence of PW-5 regarding demand. An attempt was made to contend that it was the accused who had to place to file for the required signatures of the Block Education Officer but he delayed placing that, therefore, it has to be held that the accused was in a position to show official favour.
32. The accused was tried on the allegation/charge that he failed to prepare and forward the bill to the treasury office and not for the charge that he delayed placing of the bill before the Block Education Officer for signature. He had already prepared the bill and placed that for signature and file was not returned to him. The Block Education Officer had omitted signatures. Having regard to these facts, judgment in [ENTITY]'s case relied upon by the Special Public Prosecutor is not applicable. At the appellate stage accused cannot be held guilty on different allegations than the one in the charge.
33. Having regard to these facts and circumstances, that prosecution had failed to prove the basic fact of demand and accused being in a position to show the official favour. When that be so, [SECTION] of the [ACT] does not operate against him as held by the Supreme Court in [ENTITY]'s case. The trial Court failed to appreciate the evidence on record and apply the law on the point properly, which lead to erroneous conviction and sentence. Therefore, the appeal is allowed.
34. The impugned judgment, order of conviction and sentence dated 03.09.2011 passed by the Prl.Dist. and Sessions Judge, Yadgiri in [CASE NUMBER] is hereby set aside.
35. The accused is acquitted of the charges brought against him. The bail bonds of appellant and his surety stand discharged. Fine amount deposited if any shall be refunded to the accused.
Order regarding disposal of the properties is maintained Sd/-
JUDGE Sn/KJJ/RSP