Karnataka High Court
Mahantesh S/O. Parvathayya Hiremath vs The State Of Karnataka on 29 October, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO.200006 OF 2017
(374(CR.PC)/415(BNSS) )
BETWEEN:
MAHANTESH S/O. PARVATHAYYA HIREMATH,
AGED ABOUT 50 YEARS,
OCC: SDA-CUM-TYPIST,
EDUCATION DEPARTMENT,
RAICHUR. OFFICE OF BEO.
...APPELLANT
(BY SRI. R.S.LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE PI.,
RAICHUR LOKAYUKTHA PS.
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
LOKAYUKTA, HIGH COURT OF KARNTAKA,
KALABURAGI BENCH - 585 101.
...RESPONDENT
(BY SRI. SUBHASH MALLAPUR, ADDL. SPP FOR LOKAYUKTA)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C. PRAYING TO,
ADMIT THIS APPEAL, CALL FOR THE RECORDS FROM THE
COURT BELOW, ALLOW THIS APPEAL AND THEREBY SET ASIDE
THE JUDGMENT & ORDER OF CONVICTION DATED:29.12.2016,
PASSED BY THE II ADDL. SESSIONS JUDGE / LOKAYUKTA
SPECIAL JUDGE, RAICHUR IN SPECIAL CASE NO.2/2015 &
ACQUIT THE APPELLANT IN THE INTEREST OF JUSTICE.
2
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.09.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 27.09.2024
PRONOUNCED ON : 29.10.2024
CAV JUDGMENT
This appeal is filed by the appellant under Section
374(2) of Cr.P.C. for setting aside the judgment and order
of conviction and sentnence passed by the II Addl. District
and Sessions Judge and Lokayuktha Special Judge, at
Raichur. (hereinafter referred as trial court) in Spl. Case
No.2/2015 for having convicted the appellant and
sentenced to undergo simple imprisonment of one year
and pay fine of Rs.2000/- for the offence punishable under
Sections 7 of Prevention of Corruption Act (hereinafter
referred to as 'PC Act) and also sentenced to undergo
Simple Imprisonment for 2 years and to pay fine of
Rs.4000/- for the offences punishable under Sections
13(1)(d) read with 13(2) of the PC Act.
2. During the pendency of the appeal, the appellant
died and the legal representatives of the appellant
prosecuted the present appeal.
3. Heard the arguments of learned counsel for the
appellant and learned special counsel for the Lokayuktha,.
4. The ranks of the parties before the trial court is
retained for the sake of convenience.
5. The case of the prosecution is that on the
complaint of PW7/Manappa Badiger, the Lokayuktha police
registered FIR. It is alleged that the appellant/accused
said to be Second Division Clerk in the office of the Deputy
Director of Public Instruction (herein referred as DDPI)
Raichur, and the complainant filed application for medical
reimbursement and the accused demanded Rs.2000/- as
bribe, the complainant not interested in giving bribe,
hence filed the complaint. The police registered FIR in
Crime No.7/2014 for the offence punishable under Section
7 of PC Act. After registering the FIR a trap was set up
and the complainant payed the bribe amount on
12.11.2014, the accused was caught red handed and
seized cash of Rs.2000/- and after arresting the accused,
the police have investigated the matter and filed the
charge sheet.
6. After taking cognizance by the Special Court the
accused appeared and faced the trial by denying the
charges framed against him. Hence, the prosecution
examined 9 witnesses and got marked 32 documents and
marked 10 material objects. The statement under Section
313 Cr.P.C. was recorded, the case of the accused was
one of the total denial, but not lead any evidence, except
marking Ex.D1 a letter issued by the Secretary of Zilla
Panchayath. After hearing the arguments, the trial court
found the appellant guilty and convicted and sentenced to
undergo imprisonment as stated above. Being aggrieved
with the judgment of conviction and sentence the appeal
came to be filed.
7. During the pendency of the appeal the original
accused died. Hence, his legal representatives of the
deceased accused prosecuted the appeal since the
sentence of imprisonment abates, except the fine under
Section 394(2) of Cr.P.C.
8. Learned counsel for the appellant has contended
that the accused appellant was only a Second Division
Clerk (SDA) and there is no work pending with him.
Further, contended that the evidence of PW7, the
complainant is not believable. There is a defect in the
sanction granted by the employer. On these backgrounds
prayed for setting aside the convictions. It is contended
that the PW5 is sanctioning authority, issued the sanction
as per Ex.P28, but he has admitted in the cross
examination that DDPI was the disciplinary authority,
therefore, the sanction is not correct. He also contended
that the DDPI examined as PW3, that if any claim of
reimbursement more than Rs.10,000/-, the application
shall be forwarded to the Zilla Panchayath, CEO and DDPI
is having no power and the application was pending in the
office of the DHO - District Health Officer, therefore there
is no work pending with the appellant.
9. It is also contended by the learned counsel that
the PW2/shadow witness admitted that he has not seen
anything for having paid the money by the PW7 to the
accused, but the PW2 was not treated as hostile.
Therefore, the evidence is insufficient which creates
doubt, the benefit of doubt shall be extended to the
appellant and prayed for allowing the appeal.
10. Per contra, learned special counsel supported
the judgment and sentence passed by the trial court and
contended that, the application was filed in the office of
the DDPI and the same was issued by the appellant and it
was seized from the office of the DDPI, there is a
typographical error in the evidence of the PW2.
Therefore, he cannot be treated as hostile. The PW7, also
though turned hostile, his evidence can be acceptable.
Hence, prayed for dismissing the appeal.
11. Having heard the arguments, perused the
records, the point that arises for consideration are
1. Whether the prosecution proves
beyond reasonable doubt that the
accused demanded and accepted bribe
of Rs.2000/- from the PW7 for
forwarding the medical reimbursement
application of the complainant?
2. Whether the judgment of conviction
and sentence passed by trial court calls
for interference?
12. On verifying the records, in order to prove the
case the prosecution examined 9 witnesses. The PW7 is
the complainant and he has given evidence that he has
filed application for medical reimbursement before the
DDPI office and the accused was clerk in the office. The
application was filed but the same was not forwarded to
the sanctioning authority and he has demanded Rs.2000/-
as bribe for doing the work. Therefore, he lodged the
complaint and he has identified the complaint as per
Ex.P20. Subsequently, the police prepared the pre-trap
panchanama, he has given four currency notes of
Rs.500/- each. They smeared the powder and stated, at
that time, except police there is no other person present.
Then he along with police went near the DDPI office. He
went to the DDPI office and given the money, later he
gave signal, then the police seized the money. He has
identified that the MO2 is tainted money and police took
the photographs. He has not properly given evidence in
support of the prosecution. Therefore, the PW7 treated as
hostile and in the cross examination though he has
admitted that he has handed over the money, but his
evidence is doubtful as he has given evidence both in
support of the prosecution as well as accused. He also not
stated any statement before the police in respect of the
fact, that the complainant not met the police after the
complaint. He also admitted that if the claim amount is
more than Rs.10,000/-, the sanction shall be made by the
CEO of Zilla Panchayath but not DDPI. He further admits,
at the time of filing of complaint there is no other person
present and he do not know about the pre-trap
demonstration made by the police. He also admitted that
the accused have no authority to sanction the medical
reimbursement. On perusal of the evidence of this
witness, he has given different evidence in different
stages. Therefore, without the corroboration of the
independent witnesses his evidence is not acceptable.
13. The PW1/Bhaskar Reddy who is panch witness
who speaks about preparing the panchanama registering
the FIR and he accompanied the police for trap. However,
PW2 who is the shadow witness, who accompanied the
PW7/complainant, according to his evidence, the police
prepared panchanama in the police station , they smeared
the Phenolphtlene powder and they made the
demonstration. Subsequently, he along with PW7 went to
the office of the accused. He further stated that the police
inspector, instructed him to watch the proceedings and
report to him and he has accompanied PW7/complainant
and he met the accused. The accused asked whether he
has brought money, hence the complainant handed over
Rs.2000/- to the hands of the accused, then the accused
kept the money in the pant pocket. Then, both
complainant and himself came out and intimated the
police and the police trapped the accused.
14. In the cross examination, made by the learned
counsel for the accused, this witness PW2 admitted that
he came to know one Malappa medical encashment bill is
pending and he knows that the accused has got power to
sanction the medical advance. He has denied the
suggestion that he has not seen when the accused
demanded the bribe. But in the further cross
examination, the PW2 categorically admitted as under:-
"The complainant not paid any amount,
the accused not accepted any amount, I
have not at all seen anything and I have
not at all heard anything".
15. Learned counsel for the appellant has
contended, the admission made by the PW2 clearly
reveals, he has not seen when the accused accepting the
bribe and he has not seen anything. Though learned
counsel for the respondent contended there is error in the
evidence etc., but the same was not brought to the court
at the time of arguments before the trial court nor, at the
time of evidence and once the admission made by the
witness in the evidence against the prosecution and the
prosecutor could have treated this witness as hostile and
cross examined him. Therefore, the evidence of the PW2
is not trustworthy to accept as a corroboration evidence
with the PW7, since PW7 also partly treated as hostile.
16. As regards to the pendency of the work, it is
admitted by the DDPI/PW3, that he has power to sanction
only Rs.10,000/- towards medical reimbursement and
above Rs.10,000/- the application shall be forwarded to
the Zilla Panchayath and the application filed by the
complainant was reimbursement for Rs.72000/- and
ultimately the Zilla Panchayath CEO sanctioned the
reimbursement. The evidence of this witness also reveals
as per the Ex.P26, the application was before the DHO for
certification. He has also admitted the letter produced
and marked as per Ex.D1 by the learned counsel for the
accused .
17. On perusal of the Ex.D1 which reveals the file
belongs to the DHO which reveals as on the date of trap, the
file went to DHO office, which clearly reveals that there is no
work pending with the appellant as on the date of either
accepting the bribe or demanding the bribe by the appellant,
the Ex.D1 is the public document, pertaining to the medical
reimbursement file which was in the custody of the DHO.
Therefore, as on the date of alleged acceptance there is no
work pending with the appellant.
18. The other witnesses are the PW5 who has
issued the sanction order and the police witnesses. The
PW6 engineer who prepared the sketch etc and the
Investigating Officer are the formal witnesses. On careful
perusal of the record and the evidence of PW2 and PW7,
there is no corroboration of each other in respect of
demand and acceptance by the appellant for demanding
bribe of Rs.2000/- and acceptance of the bribe. The
evidence of both witnesses were doubtful and therefore
the evidence of PW2 and PW7 is not sufficient to prove the
guilt of accused beyond reasonable doubt.
19. Therefore, the trial court ought to have given
benefit of doubt and could have acquitted the accused.
Therefore, I am of the view the trial court committed error
in convicting the appellant where there is no sufficient
evidence against appellant for having demand and
acceptance of the bribe from the appellant from the
evidence of the material witness especially PW2 and PW7.
Therefore, the judgment passed by the trial court is liable
to be set a side.
Accordingly, the appeal is allowed.
The judgment of conviction and sentence passed by
the trial court in Spl.C.No.2/2015 passed by II Addl.
District and Sessions Judge/Lokayuktha Sepcial Judge
dated 29.12.2016 is hereby set aside. The appellant is
acquitted for the charges levelled against him.
The appellant is already dead. Hence, the fine
amount deposited by the appellant is ordered to be
refunded to the legal representatives of the appellant.
Office to send the copy of the judgment and trial
court records to the concerned court.
Sd/-
(K.NATARAJAN)
JUDGE
AKV
CT:SK
