Mallikarjun S/O Basalingappa ... vs The State Of Karnataka
2021 Latest Caselaw 7125 Kant

           IN THE HIGH COURT OF KARNATAKA
                  AT DHARWAD BENCH

      DATED THIS THE 23RD DAY OF DECEMBER, 2021

                          BEFORE

           THE HON'BLE MRS.JUSTICE M.G.UMA

                  CRL.A.NO.2629/2011
BETWEEN:

SHRI MALLIKARJUN
S/O BASALINGAPPA BALIPADI,
AGE : 70 YEARS,
OCC: RTED. ACCOUNTS OFFICER,
R/O C.T.S.NO.1921, SOMAVARPET,
GOKAK, DIST; BELGAUM.
                                            ... APPELLANT
(BY     SRI MOHANKUMAR M. ADV. FOR
        SRI SHANKAR HEGDE, ADV.)

AND :

THE STATE OF KARNATAKA,
BY THE LOKAYUKTA POLICE,
BELGAUM.
                                          ... RESPONDENT
(BY SRI ANIL KALE ADV.)

        THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEEDURE PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND ORDER DATED 26.02.2011
PASSED BY IV ADDL. DISTRICT AND SPECIAL JUDGE, BELGAUM,
IN SPECIAL CASE NO.15/1998 AND TO ACQUIT HIM TO MEET
THE ENDS OF JUSTICE.

        THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.11.2021,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              2




                      : JUDGMENT :

The appellant-accused is before this Court

seeking to set aside the impugned judgment of

conviction and order of sentence dated 26.02.2011

passed in Special Case No.15/1998 on the file of IV

Additional District & Special Court, Belagavi ("the trial

Court" for short), for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of

the Prevention of Corruption Act, 1988 ('PC Act" for

short) sentencing him to under go rigorous

imprisonment for a period of 2 years and to pay fine

of Rs.5,000/-, in default simple imprisonment for a

further period of six months for the offence punishable

under Section 7 of the PC Act and to undergo rigorous

imprisonment for a period of 2 & ½ years and to pay

fine of Rs.5,000/-, in default simple imprisonment for

a further period of six months for the offence

punishable under Section 13(1)(d) read with Section

13(2) of PC Act.

2. Brief facts of the case are that, PW.1

lodged the first information against the accused

alleging that he had supplied furniture to District

Primary Education Project, Belagavi ("DPEP" for short)

and the bill was not cleared to be paid to him. The

accused who was working as Accounts Officer for the

DPEP had demanded Rs.50,000/- as illegal

gratification to clear the bill and make the payment.

Therefore he requested the Lokayukta Police to

register the case and to initiate legal action against

him. Accordingly, Lokayukta Police, Belagavi

registered the FIR for the above stated offences. The

informant produced 100 currency notes of Rs.500/-

denomination amounting to Rs.50,000/- to be

tendered to the accused on demand. The Investigating

Officer entrusted the said currency notes to the

informant under an entrustment panchanama which is

as per Ex.P.3, after smearing the currency notes with

phenolphthalein powder, in the presence of the

panchas. The informant and the shadow witness were

directed to approach the accused and asked about

clearance of the bill. If in case he demands illegal

gratification, the informant was directed to tender the

entrusted currency notes to him. If the accused

accepts the illegal gratification, the informant was

directed to give the signal to the Investigating Officer.

The shadow witness was directed to accompany the

informant and to observe the developments when the

informant meets the accused.

3. It is stated that, accordingly the informant

and the shadow witness met the accused in his house.

The informant asked the accused regarding his bill

pending for payment and the accused said to have

demanded illegal gratification of Rs.50,000/-.

Accordingly the informant tendered the currency notes

which were entrusted to him. The accused accepted

the same and immediately the informant gave signal

to the Investigating Officer, who along with co-pancha

and others staff members went to the spot and

trapped the accused. The Investigating Officer

recovered the tainted money from the possession of

the accused and got the explanation from he as he

was possessing the tainted money, under the trap

panchanama which is as per Ex.P.4. It is stated that,

the documents relating to the informant was seized

from the custody of the accused. Sanction was

accorded to prosecute him and the charge sheet was

came to be filed. The Special Judge took cognizance of

the offences and summoned the accused to answer

the charge. Accused denied the charges leveled

against him and claimed to be tried.

4. The prosecution examined PWs.1 to 8, got

marked Exs.P.1 to 18 and identified MOs.1 to 8 in

support of its contention. Accused denied all the

incriminating materials available on record in his

statement recorded under Section 313 of Cr.P.C., and

got examined DWs.No.1 to 3 and got marked Exs.D.1

to D.13 in support of his contention.

5. The Trial Court after taking into

consideration these materials on record, came to the

conclusion that the prosecution is successful in

proving the guilt of the accused beyond reasonable

doubt and accordingly convicted and sentenced the

accused as stated above.

6. Being aggrieved by the impugned judgment

of conviction and order of sentence, the accused is

before this Court.

7. Learned counsel for the appellant filed

written submission in the form of synopsis. Perused

the same.

8. Heard Sri Anil Kale, learned Special

Counsel for respondent-Lokayukta.

9. The point that would arises for

consideration of this Court is as follows:

"Whether the impugned judgment of conviction and order of sentence passed by the Trial Court in Special.C(Lokayukta)

No.15/1998 for the offence punishable under Sections 7 & 13(1)(d) read with section 13(2) of the PC Act calls for any interference by this Court?

10. My answer to the above point is in the

'negative' for the following:

: REASONS :

11. It is the contention of the prosecution that

the accused being the public servant demanded and

accepted illegal gratification of Rs.50,000/-, to

discharge his official duty and thereby he has

committed misconduct which is punishable under

Sections 7 & 13(1)(d) read with Section 13(2) of PC

Act. To prove this contention, the prosecution

examined the informant as PW.1.

12. PW.1 has fully supported the case of the

prosecution during his chief-examination. He was

subjected to cross-examination at length regarding

the procedure that is followed for calling the tender

notification, submission of the tender, approval of the

same, issuance of the work order, supply of materials,

certification by the BEO, preparation of the bill by the

case worker, approval of the bill by the District Project

Coordinator and payment of the bill to the supplier.

Witness stated that he had supplied furniture worth

Rs.15,00,000/- and had received payment in that

regard. Thereafter he again supplied the furniture

worth Rs.12,00,000/- and to clear the said bills the

accused demanded illegal gratification of Rs.50,000/-.

Another bill for Rs.1,57,000/- was also pending

towards supply of furniture to the computer room in

the chamber of the accused, but the payment was not

cleared by the accused as he was expecting bribe

amount from the informant. It is suggested to the

witness during cross-examination that the shadow

witness had came with him and waited near the

window in the house of the accused. The said

suggestion was admitted by the witness. However,

again it is suggested that the shadow witness had not

accompanied him nor entered the house of the

accused. The said suggestion was denied. Witness

stated that entrusted amount was wrapped in a

newspaper and he carried it to the house of the

accused. When the accused demand for the illegal

gratification, he kept the wrapped currency notes on

the teapoy as instructed by the accused. It is

suggested to the witness that the accused had given

the factual report as per Ex.P.5 to the Investigating

Officer immediately after the incident. However,

witness denied that Ex.P.5 contain the factual report.

This witness was cross-examined in installment for

period of several days. Initially the witness was

examining in Chief on 11.07.2007 and his cross-

examination was completed on 20.02.2010. However

the witness withstood the cross-examination.

13. PW.2 is the co-pancha who witnessed the

entrustment panchanama and also accompanied the

Investigating Officer during the trap of the accused.

This witness also fully supported the case of the

prosecution with regard to seizure of the tainted

money, regarding procedures that were conducted

both during entrustment and trap panchanama. As the

witness has not given full version as per the case

made out by the prosecution, he was treated partially

hostile and cross-examined by the learned Public

Prosecutor, wherein he admitted the suggestions put

to him. He was further cross-examined by the learned

counsel for the accused. It is suggested to the witness

that the bribe amount recovered from the accused did

not tally, when it was counted and verified by him.

Witness denied the said suggestion. Witness denied

the suggestion that a departmental enquiry will be

initiated against him if he does not support the case of

the prosecution and therefore he is deposing falsely.

The said suggestion was also denied by the witness.

14. PW.4 is the shadow witness, who was

working as typist in the RTO office, Belagavi. The

witness stated that, he was briefed recording of first

information, registration of the FIR, demand by the

accused for the illegal gratification, entrustment of the

currency notes and the procedures that were

undertaken during the entrustment panchanama.

Witness stated that the Investigating officer took all of

them in the jeep and the jeep was stopped in Patil

Galli and he was instructed to accompany PW.1 to

meet the accused in his house. Accordingly, PW.1

went inside the house of the accused and he was

standing near the window. PW.1 asked the accused

about the work and the accused asked whether he has

brought the bribe amount of Rs.50,000/-. PW.1 gave

the same to the accused. The accused after receiving

the same kept it on the teapoy. PW.1 came out and

gave signal and immediately the Investigating officer,

the co-pancha and other staff members came to the

spot. The investigating Officer enquired the informant

and also the witness who have stated regarding the

facts and hand wash of the accused was taken in two

different bowls which turned into pink colour. The

accused produced the tainted money which he had

received. The trap panchanama was drawn in the

house of the accused from 8.30 a.m., to 12.00 noon.

As the witness could not say regarding the explanation

given by the accused as per Ex.P.5, the witness was

treated partially hostile. During cross examination by

the learned Public Prosecutor, he admitted that the

accused had given a written explanation as per Ex.P.5,

but the contents of the said explanation were false.

15. This witness was also cross-examined by

learned counsel for the accused at length. It is

suggested to the witness that, the accused had stated

that the work of the informant was not pending with

him and that the accused was falsely implicated

without any basis. Witness also denied the suggestion

that the accused in fact refused to receive the

amount, when PW.1 approached with the tainted

money. Witness denied the suggestion that he is

deposing falsely since he is a public servant.

16. PW.5 is the Accounts Superintendent in

DDPI office, Belagavi and stated that DPEP is part of

DDPI office. Witness stated that the accused was

working as Accounts Officer in DPEP and after laying

trap he came to know about the incident. The witness

stated that the complainant was supplying the desks

for the schools and also the office furniture. Several

payments were made to the complainant through his

office for supply of the furniture. He came to know

from others that the amount was due to PW.1 in

respect of the work he carried out regarding the

computer room. His office had called for tender for

supply of teakwood charges with writing pads. PW.1

had placed quotation which was the lowest one and

therefore the same was accepted. The order was

placed for supply of the chairs. He had also supplied

almirahs to his office and the bill submitted by PW.1

was pending for payment. Witness stated that after

about a month from the date of the trap of the

accused, he was asked to take charge as Accounts

Officer in DPEP and thereafter he furnished the

document that were required by the Investigating

Officer. Ex.P.8 is the relevant documents and page

Nos.175 to 179 of the said document pertains to the

bill passed by him as Accounts Officer in DPEP. The

witness states that as per bill No.53 mentioned in

page No.175 of Ex.P.8, the bill was paid on

05.11.1996 and bill No.54 on 13.11.1996. The amount

towards two bills was paid by the office on 29.03.1997

as per page Nos.175 and 176 in Ex.P.8. The witness

stated that, he has signed those two bills as Accounts

Officer. Witness states that as per page No.179 of

Ex.P.8(i), PW.1 had supplied teakwood chairs with

writing pad and page Nos.181 contains comparative

statement for supply of such chairs. Since the

quotation by PW.1 was the lowest, the said tender

was accepted on 14.10.1996. PW.1 was requested to

execute an agreement. For preparation of computer

room. There were no official records since the World

Bank Team was visiting the office, the District Project

Coordinator received oral order for preparation of the

computer room and accordingly, PW.1 prepared the

said room as per oral order. Witness stated that,

during 1996 he was working under accused and he

had taken charge as Accounts Officer on 23.12.1996.

Witness admitted that on 19.12.1996 the accused had

attended a meeting in the office from 10.30 a.m., to

2.00 p.m. Witness pleaded his ignorance as to who

repaired the computer room in his office. Witness

stated that repair of computer room means fixing the

aluminum panels with glass and partitioning the room.

17. PW.6 is the sanctioning authority, who was

working as the Under Secretary to the Government,

Department of Finance (Administration and advances,

Bengaluru). The witness stated that the DGP,

Lokayukta had sent a requisition to accord sanction

along with the documents pertaining to the

investigation. He went through all those documents

and accorded sanction to prosecute the accused.

During cross-examination by the learned counsel for

the accused, witness admitted that as he accorded

sanction to prosecute the accused on the basis of the

documents mentioned in para 41 of the note sheet

which is marked as Ex.P.12, he accorded sanction.

Witness stated that he does not remember as to

whether he has verified other documents as well. He

denied the suggestion that he had never scrutinized

any of the documents forwarded to him, but

mechanically accorded sanction without any basis. He

denied the suggestion that he is not the sanctioning

authority to accord sanction.

18. PW.7, was working as the DDPI Belagavi at

the relevant period of time. The witness states that,

he knows PW.1 and the accused. Accused being the

Accounts Officer in DPEP. Tender was called for supply

of furniture. PW.1 quoted lowest price. Therefore,

supply order was issued in his name. Witness states

that he came to know about the trap of the accused

subsequently as he was not in station on that day.

PW.1 was entrusted with the work of preparation of

the computer room, such work was part of DPEP. The

representative from World Bank scheduled to visit his

office and therefore PW.1 was asked to complete the

work of preparing the computer room. The said order

was an oral order, since there was urgency to get the

work done. PW.1 had completed the work as directed.

But the amount was due to be paid to him. Another

tender for supply of wooden chairs was also entrusted

to PW.1 during October, 1996. Witness stated that he

does not remember as to whether the bill amount to

be paid to PW.1 was due as on the date of trap or not.

Therefore, witness was partially treated hostile and

during cross-examination by learned Public Prosecutor

witness submitted that, he had given his statement

before the Investigating Officer that the amount was

due to be paid to PW.1 as on the date of trap. He also

admits that an amount of Rs.28,650/- was also due to

be paid to PW.1 as he supplied the chairs, tables,

almirahs etc.

19. During cross examination witness stated

that Ex.D.1 is the copy of the bill register and that

since converting the room into computer room is a

minor work he had issued the oral order and he

personally bear the expenses. On 11.03.1997 since

PW.1 had complied with the requirement of filing a

certificate, the bill amount was paid to him Witness

stated that, Ex.D.2 is the Xerox copy of the meeting

proceedings that was held on 19.12.1996 between

10.30 a.m., to 3.00 p.m. He denied the suggestion

that he deposed falsely in his chief-examination.

20. The witness was again cross-examined by

the learned Public prosecutor. Witness admitted that a

sketch was prepared for renovation of the computer

room and since there was urgency, he himself had

written an endorsement to complete the work quickly

as per Ex.P.15. Witness denied the suggestion that he

is deposing falsely that he himself borne the expenses

for renovating the computer room and that Ex.D.2

was concocted in collusion with the accused. He also

denied the suggestion that he is deposing falsely in-

order to help the accused.

21. During further cross-examination by the

learned counsel for the accused. Ex.D.5 to D13 were

came to be marked as the same were admitted by the

witness. Witness stated that after trap the accused

continued to work in the offence till he was

suspended.

22. PW.8 is the Investigating Officer. He spoke

about the entire investigation undertaken by him.

During cross examination witness denied all the

suggestions suggested by learned counsel for the

accused that no complaint was lodged with him, no

procedure as stated by him in the chief examination

were conducted for drawing the entrustment

panchanama and the accused had never demanded

nor accepted the illegal gratification. It is also

suggested that no procedure was followed during trap

as mentioned in the trap panchanama and the tainted

money was not recovered from the accused. Witness

stated that more than Rs.12,00,000/- was due to

PW.1 to be paid by the department towards supply of

various furniture and carring out the work in the

office. Witness denied the suggestion that Exs.P.1 to

18 were concocted against the accused. Witness

denied the suggestion that he deliberately chosen

PW.4 as shadow witness, as he is his friend.

23. Accused got examined DW.1-Satish

Shivarai Nilajikar who is the resident of the house

which is situated in-front of the house of the accused.

Witness stated that the house of the accused having a

Hall with only one window. If a person stands outside,

he cannot see or hear anything from inside. The

window is having glass and thick carton. Witness

stated that he himself is a Vastu consultant and a

contractor and carried out the work for the accused.

24. DW.2 is one Udaykumar Baburao Bolmal.

Witness states that he knows the accused and seen

his house while going for a walk. Witness stated that,

he came to know regarding the trap of the accused on

the next day of the incident.

25. DW.3 is one H.L.Somashekar. Witness

stated that he was working in Education Department

since 1995 to 2000 in Bengaluru and speaks about

procedure that is to be followed for carryout the work,

submission of the bill and payment.

26. Ex.P.5 is the explanation tendered by the

accused to the Investigating Officer at the time of

trap. As per this document accused stated that on

21.12.1996 when he was in his house, PW.1 came and

insisted for the work order for supply of furniture to

the office. He voluntarily tried to give the amount,

even though he refused to receive the same. Accused

further stated that PW.1 should have supplied the

desks about a month earlier as per the supply order.

There was inordinate delay in supply of the materials

which was effecting the office work. Therefore he

endorsed to take action against the accused. He also

recommended to blacklist PW.1 from participating in

the tender. On 17th and 18th of December 1996 such

endorsements were made. In view of the same PW.1

tried to pay bribe amount when the same was

refused, he deliberately came and caught hold of the

accused. PW.1 was having ill-will and therefore,

deliberately stage managed to trap him through

Lokayukta police.

27. From the oral and documentary evidence

placed before the Court, it is clear that PW.1 was

supplying of the furniture and had also carried out the

work of altering the computer room. Bills were

pending to be paid to him. PW.1 was examined at

length for a long period of time, but nothing has been

elicited from him to disbelieve his version. PW.4 being

the shadow witness was also cross-examined at

length, but he also withstood such searching cross-

examination. As per Ex.P.5, the explanation given by

the accused at the initial stage, PW.1 had deliberately

came and paid the bribe amount only with an

intention to trap him as he had written adverse

remarks against PW.1.

28. It is surprising to note that, even though

PW.1 was cross-examined on several dates for a long

period of time, nothing has been asked to him to

probablise such explanation given by PW.1. Only

suggestion that was put to PW.1 is that accused had

given his statement which was true and factually

correct. The suggestion was denied by the witness. An

attempt was made to contend that PW.4 shadow

witness had not accompanied PW.1 when he met the

accused. But both PWs.1 and 4 have consistently

stated that when PW.1 entered the house of the

accused, PW.4 being the shadow witness was standing

near the window and witnessing the developments

inside. PW.4 categorically stated that he was seeing

and hearing the conversation between the accused

and PW.1. Nothing is on record to disbelieve the

version of these witnesses.

29. The spot sketch i.e., Ex.P.10 prepared by

PW.3 discloses that there is a window to the Hall

where the shadow witness was standing. The accused

and PW.1 were inside the Hall which was just 3.05

Mtrs., away from the place where the shadow witness

was standing. Even though an attempt was made by

the accused to contend that the window was having a

thick glass and it was covered with thick carton by

examining DW.1, the version of this witness cannot be

believable since he is very close to the accused and

naturally he will depose to assist the accused. Even

though DW.1 can be termed as an interested witness,

PW.4 is a public servant working as typist in RTO,

Belagavi. He is an independent witness who is not

having any obligation either to assist the prosecution

or to depose against the accused. It is pertinent note

that the facts deposed by DW.1 about the glass and

the thick carton to the window, nothing is suggested

either to PW.1 or PW.4 about the same. Both these

witnesses have withstood the searching cross-

examination regarding the place where they were

standing and the incident had occurred.

30. It is interesting to note that when PW.4 has

cross-examined at length, the version of the accused

as per Ex.P.5 was not suggested to him. Both PWs.2

and 4 who are the independent pancha witness were

suggested that they are deposing in favour of the

prosecution out of fear that departmental enquiry will

be initiated against them. But both these witnesses

have flatly denied such suggestions.

31. It is to be noted that the accused has never

stepped into the witness box to speak about the

defence taken by him. The conduct of PWs.5 and 7 in

deviating from their statement given before the Police

and giving evasive answers speak volumes. The

evidence of PW.7 that even after trapping of the

accused he continued to work in the same position in

the office till he was suspended, also gains importance

in considering the documents that are relied on by the

accused. Even though the accused examined DW.3 to

speak about the special audit he had undertaken to

support the contention of the accused that no bill was

pending with the appellant, the same would not help

the accused in any manner as the prosecution is

successful in demonstrating that the bills were

pending with the accused as on the date of incident

from the evidence of PW.5 himself.

32. Even though it is contended by the accused

that he was not authorized to issue the order for

Rs.6,50,000/- as it was PW.7, the Project Coordinator

was authorized to issue the same, the same will not

come to the rescue of the accused as admittedly PW.1

used to supply the furniture regularly and also used to

attend whatever the work that were entrusted to him

even under oral directions. The conduct of PWs.5 and

7 in giving inconsistent statements before the Court

makes their version not believable and it has to be

considered with a pinch of salt. An attempt was made

to deny the contention of the prosecution that on

19.12.1996 the accused had demanded Rs.50,000/-

from PW.1 by stating that there was a meeting which

was attended by the accused from morning 10.30 to

3.00 p.m., the same would not falsify the contention

taken by the prosecution. PW.1 was cross-examined

at length in this regard but nothing has been elicited

from him to disbelieve his version. PW.1 and PW.4

consistently stated that even on the date of incident

accused had demanded the illegal gratification of

Rs.50,000/- and only thereafter PW.1 had paid the

amount. Even though the accused relies on Ex.D.1, 3

and 13 and successful in marking the same through

PWs.5 and 7 who have deviated from their original

statement and turned hostile to the case of the

prosecution, no sanctity could be attached to the

same. If at all such documents were believable the

same could have been tendered to PW.1 during cross-

examination. No such attempt was made for the

reasons best know to the accused. Even though the

accused has so many things to say against PW.1 and

so many documents to point out, he never stepped

into the witness box. An adverse inference will have to

be drawn against the accused for not making himself

available for cross-examination regarding all these

defences and the documents that were produced by

him.

33. When the prosecution is successful in

proving the demand and acceptance of illegal

gratification and recovery of the tainted money from

the custody of the accused, the presumption under

Section 20 of the PC Act would come into operation

and it is for the accused to rebut the said

presumption. Even though the accused made an

attempt to rebut the presumption by cross-examining

PWs.1, 2 & 4 at length, also by producing documents,

and by examining PWs.1 to 3, the same are not

helpful to probablise the defence taken by the

accused. Therefore, I am of the opinion that the

prosecution is successful in proving the guilt of the

accused beyond reasonable doubt and accused is

liable to be convicted.

34. I have gone through the impugned

judgment of conviction and order of sentence passed

by the Trial Court. It has taken into consideration all

these materials on record and rightly convicted the

accused. I do not find any reason to interfere with the

same. Hence, I answer the above point in the

'negative' and accordingly the appeal is hereby

dismissed. The judgment of conviction and order of

sentence passed by the Trial Court is hereby

confirmed.

Sd/-

JUDGE EM