IN liii IIIGIICOL RI Of K\R\\IAK\ (IRCI 1 I BFNCI I \Il)II kR Al) DM1 I) 11115 1111 14 H l)\\ 01 (X’IOBl R 2011 131 I ORI 1111 I IOVIJI I 1R. JL SI WI %‘ASI) BYR.RIl)IW CRl%1lN.I APPI l \o.348 2009 lIE lI 1%: M.Krishnamurthy S o \1. Sree Ramulu. Aged about 59 years. Retired I leetrieal liigineer. (il:SCOM. R o Bellary. APPI Al I AN I (II> Shri vijaykumar llajantri. \docateJ AM): I lie State of Karnataka. 1 okay ukta P.S.. Bellan. Represented by PubIk. Ptosecutor. Circuit Bench. l)hansad. ...Rl SPO’sl)l N I By Shri Jagadia Patii. A1v304t8) I his Criminal Appeal is filed under Section 3’4(2 of the Code of C. riniinal Procedure seekina to set aside the order of (‘on iction and sentence dated I .04.2009 passed by the PrI. Sessions (Special) Judge. Bellary. in Spl.( ase No.5 20(16. cons icting the appellant for the offence punishable under Sections — and I 3 I )(d) read ith Section 13(2) ol Pre ention of ( orruption tt 19%. and ett. I his appeal coming on lot final heat ing this day the C nun delnered the Iollosing: S JtI)CiENT hri Vi ja kumar Bhajantri. Ad\ ocate. has entered appearance Ibr the appellant. 2. I Icurd the learned counNel br the appeihint ind hri .IaadiNLi litil uppeurin Ibr the respondent. 3 1 he ltets briefly stated are as bl lows: One I )ecpak Patil had lodged a v ritten coniplaint heidre the Police Inspecto ol Karnataka I okavukia. BeIIur\. aIlein tHt he \\aN a LoIdsiflhth with his shop at riiiHtli (‘oinple\. .Junnna \1:isjid Road. Bellar\ I lie accused \\ ho i the appellant had isited the Nhop o I the complai mint and had ad\ ised h mi to rep lace the coin mere al pO\\ er suppl\. :\ecordingl\. the coin plai nant said to have made an application tlnouh a licenced electrical contractor \l N.IIdinm I leetricls. BeiIar\. and had m:mde the requisite depositN and other char&eN amnountmn to -. A cop\ oh the unction order as u iso gi\ en to in in h\ the contractor. I lo\ve\ er tIle installation I’ the electricil\ meter as not completed, I herehare the electrical contractor h:md ad\ ised the Lomnpl:minant to approach the mceuNcd to e\pedite tle iliNtallatmon oh’ the electrical meter :\ccordjmil\. oil r 2 I. I .2006 the complainant is said to ha e approached the accused and requested him to expedite the installation of the power meter. It is alleged that the accused demanded illegal gratilication oft2.1)00 — in order to complete the installation ot’ the meter. 1 lie complainant was not willing to do so and hence had lodged a complaint in order to en%ure that the accused brought to hook. On the basis of the complaint a case was registered against the accused. in Crime No.1/2006. and investigation was commenced. A trap was laid to catch the accused red—handed. in reeei’ ing the illegal gratilication. According io the prosecution. the trap was successililly carried out and a pamehanama was drawn as regards the trap and after obtaining the requisite sanction from the Superintending Engineer. (il:SCOM. Munirahad. a charge sheet was laid against the accused for the olknces punishable under Sections ‘. 131 I )id read with Section 13(2) of the Prevention of Corruption Act. 1988 (hereinafter referred to as ihe P.C.AcC. for brevity). ‘I he accused had contested the proceedings. [hereafter charges having been framed against the accused and on the basis of the evidcnce tendered by the prosecution which e\amined se’ cii witnesses and exhibited the documents ls.P. I to P.43 apart troni NH )s. I to I 1 the Court below framed the following points for consideration. S 4 Whether the sanction order issued by PW-6. tbr prosecution of the accused is valid and proper’? 2. Whether the prosecLilion proves beyond reasonable doubt that the accused being a puhlic servanC uhile ‘‘irking Us Jr. I.ngineer. (HSCOM l3ellary. demanded bribe of Rs.2.000’- from PW- I Deepak Patil. the complainant on 2 1. I .2006 br fixing the electric meter to his shop pursuant to the said demand. on 24.1.2006 at 10-30 a.m. the accused once again demanded and accepted bribe ol’ Rs.2.000/- as illegal gratification from the complainant as motive or reward. to sho’ oflicial Iii our? 3. Whether the prosecution furthcr proves beyond reasonable doubt that on 24.1 .2006 the accused obtained pecuniary advantage of Rs.2.000. - from the complainant I h> corrupt or illegal means h> abusing his position as public Servant, to show official favour. rendering him S t liable lbr conviction U/s.13 (I )ul) punishable U’s 13(2) of P.C.Act 1988? 4. What are the oliences made out against the acctised? 5. hai order? [he Court below has answered points No. I to 3 in the affirmative and the charges against the accused insofar as point No.4 is concerned, have been held to be proved. Accordingly. the appellant has been sentenced to undergo simple imprisonment for a period of’ one >ear and to pa> a fine of t5MOU — 11w the ollence punishable under Section 13(1 )(d) of’ the P.C.Act and to undergo simple imprisonment Ibr a period of’ two years and to pay a line of t 10.000/- for an offence punishable under Section 7 of the P&’.Act. Out of the line amount a sum of t5.000 — is to he paid to the complainant as compensation. It is that which is under challenge in the present appeal. 4. i’he learned counsel for the appellant while taking this (‘ourt through the record would point out the several intirmities in spite of which the Court belou has held that the charges ha e been S pros ed beond all reasonable doubt. lirstR, he \\ould point out that the eoulplai mint \\ as not conversant \\ tth the kminada hinuaee. lie could neither speak nor \\rite in Kaiinada lancuace. lne\plleabl\. hoe\ er. Ix.P. I. the complaint is in the Kannada lancuace. It does not d Jose that the contents oh the same as read o\ er and explamed to the eniphnnant. in the absence oh ni such e1arihic it on and lien the eonipknnt ‘ a’- lound to be in the Kuinada kmi.uaee. and ‘ hen the eompla i nant \\ as eons ersant on K th the I imdi lanetiae. the complaint is apparenll\ hoisted in the name oh’ the complainant. I he said complainant as also examined in chici and cross examined in the I lindi lanuage \\hieh was dul\ translated bar his benebt. Aceordingk. this lacuna is not explained b\ the proseeut on nor adverted to h\ the trial (ourt, Similar is t lie ease insotar as I xs.P.2. P.3 and P.4 are concerned. Kx.P.2 and P3 are panehanamas oh’ handing over the tainted money and Ex.P.4 is the seizure na haiar Ii ieh are all in Kannada lanuae and the complainant ha\ m endorsed the same, is ithout a liilier elarihicat on that the same has been read o er and explained to the comphi nant. 0 7 5. the learned counsel ould take this CoLirt through the e’ idence ot PW.3 to demonstrate that the testimon of the said ‘iitness has been completely demolished in the cross examination. yet the trial Court has placed reliance on the same to hold that the charges have been brought home. Further. the evidence of PW.7 the Investigating Officer, does not corroborate the evidence of PW.3 the shadow itness on any ol the material particulars. 1 he significant circumstance that ‘as to he established. to hold that the charge as prtn ed. was to establish that there was a demand and receipt of illegal gratification by the accused. [his is holl> absent. In that. the complainant had met the accused according to the allegations and the money was not handed over to the accused but was placed on his table and quite to the contrary it is stated that the money was inserted between the pages of the ledger on the table of the accused. This inconsistency would disclose that the shado ‘s itness was not in a position. either to hear the alleged cons ersation bet” een the complainant and the accused. nor as in a position to see the manner in ‘hich the money was allegedl> handed over. In an5 e ent. the nione’ as not lound on the person of the accused. [he currenc’ notes. admittedly. having been recovered from between the pages of g the llr on the table or the accused would not establish that there as a denand and receipt of’ illeal c tiiicaiion b\ the used. I lie learned oiinsel would Itirther point out thai there \\ as no ctioii for the cused to \ sit the c mplamant as there w as iiotluiie to be done on hi pirt iiisoldr a the installation of’ the meter w Inch wa said to he pend nn and therefore the ciii re tlieor\ of the accused ha\ inn denniiided and recei\ ed illenal nxatilication to iiistall the iter of the coniplamant is wholl without basis. ( I he oilier c ircunislance \vh ich is sought 10 be poi nied out is the lad that the complainant s ease is to the ellect that there as a sanction rder copy w h ich had been obtained h\ the ci ectrica I contractor, hut in spite of the sanction order flar the electrical Connect ion the complainant being asked to approach the accused for installation of the electric meter is concerned \VOU Id indicate that there is no substance in such a content on When the sand u order \ as a read\ in place. the question of’ the complainant approach i in the accused insokir as the installation of’ the electrical ilieter is me\plitble. It is aRo pointed out that the accused waN not iii psNesNn of I \•I’h. the sanction order as oil the diie of We trap I li is i un her lbrt i lied bs the evidence of’ PV ‘. the I n et tent I () ()IIker ho has also stated that I x. P36. the saneti n order \\ as hot in the possession ol the accused as on tile date ol tile Irap. I lierelore. the (ourt below has o erlooked these serious hlllirnlitles ill 1loldinL that the ehar.tes have been pros ed beyond all reasollab Ic doubt. I he learned counsel Ir the respondent. on the other hand. ould vehemently oppose the appeal and \ ou Id submit that it 5 lot tenable to contend that there v as no e ms i steilc\ bet veen the e idenee ol the complainant and the sliado itness. I he c idenee 01 tile Ilad0\V witness cannot be said to ila\ e been demolished in cross e\anlination. I he sihldO\\ \\ itiless as there or tue particular ptrpo ul \\ itnessihl tile denland aild receipt ol illeLal ratiIicatioii and tue said mess u as \ er\ nluch outside tile chamber of tile accused and as in a position to ilear the conversation het\\ ecu tile ace used and the complainant alld tile tact tilat tile complainant was cal led u poti to keep the m ne on the table (11(1 n( 4 mean that it as kept oi t ic table. hut it \\ as i iserted bet ccii the pares of the led.ter. ill is be soucht to be einphasited as au i hlcoilsi steilc\ is Ilot tell able lie \\ould. therefore. subnlut that the nialluer m \\h]ch the nurported inconsistenc\ is hei n illagni lied b\ tile appellant. does not \\ ater do\\ n the case ol the prosecution. 1 he tict that the accused had called upon the complainant to pa\ .i)U() - as illegal eralilleation. in order to e\pedite the nstal!ation Oi the electrical meter. has been established in accorduice with la and the same UUITCflC\ 1ote not bein reco\ ered Iiom the person ol the aeeused Is v ho! l\ I ilinateria I since it was not possible to access the ledger on the tabl C ol the accused \ ithout his permission or kno\\ ledee and the tact that the inone\ \\as seized immediately t herca tier and subjected to bemg ‘ ashed in sodium carbonate so! ul ion to disc lose that ii \\ as tainted notes \vh i ch v crc recovered from the table o I the accused is su1licien compliance of the requirement in la in establishing the charges against the accused. I hereIre, he would submit that the accused havi ne been caught red-handed v ould necessaril ha\ e to sufkr the rigour of the law and the given maximum punishment that is prescribed for the ollenees alleged, the Court has been extremely liberal I th the accused in imposing a mini mum sentence and there P re there is no arrant ftr interlrence by this Court I \ a\ of rcpl\ the learned c unsel Ir the appellant x\ ould : i5t that the criminal urispruuence \\ould reqtuie that all the charges arc established beyond all reasonable doubt. I lie Pict that a II the chamber of the accused was almost ten lèet in length and is located in a shopping complex in a bus> area would render most the conversation inside the chamber. inaudible. lheretbre the contention that the shadow witness was standing outside the chamber and could distinct I> hear the coin ersat 11)11 bet” een the complaimint and the accused is totall> unbelievable. [he lbrther inconsistency insolhr as the currency notes being placed on the table or between the pages of the ledger would lbrther lend credence to the lack of consistency in the e’ idence of PW.7 the shadow witness and the complainant when the main sheet-anchor of the prosecution case is lost, the endavour of the prosecution to establish that there was a witness to the demand and receipt ol illegal gratification, would collapse. [lie contention that there is consistenc) between the evidence of the complainant and the shadow witness is therefore totally unreliable and cannot be made the basis lhr holding that the charges ha’ e been established be) ond all reasonable doubt. ID. The learned counsel would. therefore. submit that this coupled itli the other inlirmities. that are alread> pointed out. would rcult in the entire proceedings being vitiated as the charges cannot he said to have been brought home on the basis of the & 1•’ S. material evidence which has been relied upon by the trial Court which ould he detrimental to the case of the appellant and therefore ouId seek that the appeal he alloed and the judgment of the trial Court be sd aside. I I. On the above contentions as rightly pointed out by the learned counsel br the appellant, the prosecution is required to establish that the charges against the accused are proved he> ond all reasonable doubt. Though the fact that the complainant did not know the Kannada language and that all documents endorsed by him in the course of the proceedings were in Kannada language. v.ithout a further endorsement that the same as read over and esplained to the complainant, even if could he o erlooked. as the documents ha’ e been prepared in the usual course of things and the complainant has not raised any protest in affixing his signature to the said documents. and thercibre it can he presumed that he had no objection in affixing his signatLire to those documents and een il’ this hurdle is said to he a tEchnicality for the endavour of the prosecution to establish the charges. the other infirmities, insofar as the adequacy of proof to establish that there as a demand and receipt ol’ illegal gratification b> the accused. would yet hill short of’ the requirement in lau. admmedI i\V the shadow w itness was itside the ciiainher ol the aisea at the time that the iiipkunant had met the used there is i unTie on record to indicate that the shadow \\ iines was in a pOsiti( n to w ateh the ph\ sical movement or the lip ino ement ot the accused and the complainant. lie w as certa n i\ outside their view and possi Nv out o I earshot o I and there lore to hold that P\\ 7 w as in a posit ion to hear the con\ ersation hetw een the coinp ha i nant and the accused cannot he reudi K accepted. ii’ this aspect o I’ the matter is taken into account. the cnn re case ol the prosecution w ould cet \\ aicred down it is to he noticed that the complainant in the present case hand. as gathered lI’om his complaint and w Ii ich is a sign i P cant circumstance w h ich the trial Court has glossed o er. and ha held that even thouch the complainant is treated as a hostile w iincss. the evidence oh’ a hostile w itness need not he thrown out and it is el posshie br the Court to reR on those aspects oh the e idence w h ich would o in hi\ our o I’ the prosecution and ace rdnlei\ has soueht to rel\ upon certain adiiiissioiis iii tile cross c\ailliiL nn ii lioidiiig that the chiaree lia\ c hcen ro\ cd. i hs on tile pat I the trial Court is un lair to tile appellant especial K in the 14 light of other inconsistencies which the learned counsel for the appellant has pointed out. 13. Secondly, the currency notes which were tainted for the purpose of the trap “crc not found on the person of the accused. The same having been reco ered hum, between the pages of the ledger on the table of the accused by itself would not bring home the charge that the accused had demanded and had reeei ed and the same ivere placed between the pages of the ledger of the complainant, at his direction. When a doubt of this nature is raised. the benefit of the same ought to go in tàvour of the accused. This is an established principle of criminal jurisprudence and thereibre the burden is heavy on the prosecution to establish the charges beyond all reasonable doubt and when the basic requirement of a demand and receipt of illegal gratification is not established, it cannot be said that the charges have been proved beyond all reasonable doubt. Further the appellant is said to have retired from sen ice and Li virtue o.h’ the punishment the pensionary benefits of’ the accused are said to ha e been ithheld. This is a further onerous punishment. which the accused has sulThred on account of the findings ol’ the trial Court. ‘l’herefore when the entire future of the appellant “as at stake. 15 there al a dut3 cast on the Court to establish that the charges “crc proved beyond all reasonable doubt. In that light of the matter I have no hesitalion in holding that the prosecution has litilcd to pro’ c the charges beyond all reasonable doubt and accordingly the appeal descr Cs Li’ he allowed. 14. I’he appeal is aecordingi> allocd. lhe judgment ol’ the trial Court is set aside. The amount of tine paid by the appellant shall he relimded to him. sal- Md, ‘- V.