JUDGMENT
The acquittal of the respondent by the trial court in respect of the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 is called in question by the State through the Lokayuktha police in this appeal.
2. Brief facts of the prosecution case are that, the respondent-accused, while working as a Second Division Assistant and Bill Collector of Sabbanakuppe Grama Panchayath S.R Patna Taluk, demanded Rs. 500/- from the complainant for giving him a copy of the resolution dated 13.3.1998 The complainant, unwilling to pay the aforesaid amount, approached the Lokayuktha police with his complaint as per Ex.P-1. Entrustment mahazar was drawn as per Ex.P-2 and then, the complainant accompanied by P.W.2 shadow witness went to the office of the accused at around 12.30 p.m on 24.3.1998 and the trap was successful and the trap mahazar was drawn as per Ex.P-3.
3. The explanation given by the accused during the trap was that, the complainant had given Rs. 500/- towards water service charges and the said amount was kept on the table by the complainant and as there were number of persons present, the accused kept the amount in his pocket so that he could issue the receipt to one Shrikantegowda, whose work he was attending at that time. The Lokayuktha police came and recovered the amount from the accused. On completion of the investigation, which also included obtaining the sanction order as per Ex.P-11, the accused was charge sheeted.
4. Following the accused pleading not guilty, the prosecution led evidence by examining P.Ws 1 to 5 and marking 14 documents along with 9 M.Os The accused led no defence evidence except marking Ex.D-1.
5. The learned trial judge, after evidence appreciation, found that the sanction order itself was not in accordance with law and observed that the sanction order was issued not by the competent authority, but by some one else who had no power to issue the sanction order and, therefore, after holding that the sanction order is not in accordance with Section 19 of the P.C Act, the trial court, however, went on to observe that even the evidence placed by the prosecution had not probablised the case against the accused and hence, the accused was acquitted.
6. The submission of the learned counsel for the appellant-Lokayuktha is that, even if the sanction order is not valid, as the accused had taken part in the proceedings without questioning it at the earlier stage of the proceedings, it is not now open for the accused to say that the sanction order is invalid and that apart, the appellate court cannot reverse the findings of the trial court even if there is absence of sanction order or any error or omission or irregularity unless, in the opinion of the court, there has been failure of justice. Reference was made to sub-section (4) of Section 19(3) and to explanation (a) in that regard. Therefore, the validity of the sanction order cannot be considered at the appellate stage.
7. Coming to the merits of the case, the learned counsel for the appellant referred to the evidence of P.W.1 complainant, P.W.2 shadow witness and P.W.5 I.O to argue that the above witnesses have deposed to the effect that the accused demanded and accepted the bribe amount of Rs. 500A from the complainant in order to issue a copy of the resolution dated 13.3.1998 The hand wash of the accused also had turned the chemical solution into pink colour and the explanation given by the accused also goes to show that he had accepted the bribe amount. Therefore, the presumption under Section 20 has to be drawn in favour of the prosecution. Reliance is placed on the Apex Court decisions reported in 2001 Cri.L.J 515 and 1999 SCC (Cri) 1494 in this connection. Hence, the learned counsel sought for the order of acquittal to be set aside and the respondent be convicted.
8. The learned counsel for the respondent-accused, on the other hand, argued that the evidence of the prosecution witnesses is not very convincing and it is not clear as to whether the complainant gave the amount directly to the accused or the money was kept in a cover and the cover was given to the accused, and the witnesses, including the I.O, do not speak consistently in that regard. Secondly it is argued that, no work was pending with the accused because, even as per the evidence of P.W.1, he had obtained stay of the resolution by preferring an appeal much before giving the present application on 17.3.1998 and, therefore, the question of the complainant not having a copy of the resolution cannot arise as, without a copy of the resolution, the complainant could not have obtained the stay order. This itself shows that the complainant had a revenge to take against the accused because, the accused and the other villagers were opposed to the attempt of the complainant to cover up certain area of land beyond his site for formation of a road. Therefore, the trial court has properly appreciated the evidence in this backdrop and has acquitted the accused.
9. It is also argued by the learned counsel for the respondent by referring to the evidence of P.W 1 that the very next day of giving the application, the complainant approached the Lokayuktha police and if this were to be the position, the complaint ought to have been lodged on 18.3.1998 But Ex.P-1 is dated 24.3.1998, almost after seven days of giving the application. This delay also is very fatal to the prosecution case in view of the enmity that the complainant had against the accused. It is also submitted that P.W.3 could not hear the conversation between the accused and the complainant and the said witness had not seen the accused accepting the bribe amount from the complainant. In the light of the aforesaid deficiencies in the prosecution case, the trial court was justified in acquitting the accused.
10. The learned counsel for the respondent also submitted that the order of acquittal should not be lightly interfered with because, the acquittal order strengthens the innocence of the accused and if two views are possible and the court accepts one view, the appellate court should not interfere with the said view taken by the trial court. As far as the sanction order is concerned, it is submitted that when the sanction order is issued by an authority, which is not competent, the sanction order, therefore, gets vitiated. Reliance is placed for the aforesaid submissions on the decisions reported in 2008 (2) Acquittal 355 (SC), (2006) 7 SCC 172, 2005 Cri.L.J 381, 1998 SAR (Criminal) 425, 1995 Cri.L.J 3428 and AIR 1999 SC 3706. Therefore, the learned counsel sought for the appeal being dismissed and to confirm the order of acquittal.
11. Having thus heard both sides, whether the appellant has made out a case for this court to upset the order of acquittal is the point for consideration.
12. The learned trial judge has observed at paragraph-28 thus:
“28. Sanction: It is the positive case of the sanctioning authority examined as P.W.4, that the Chief Officer, Zilla Panchayath is the competent authority to grant sanction. Section 113 of the Panchayath Raj Act supports this case of the defence. So, the I.O has addressed a wrong person to seek sanction is probablised in the facts of the case. So, sanction is not in accordance with Section 19 of the P.C Act.”
13. It is, therefore, clear that the trial court was of the view that sanction order was not in accordance with Section 19 of the P.C Act. After having observed thus, the learned judge has gone on to consider the case on the footing that the case pleaded by the prosecution has not been probablised and, therefore, it went on to hold ultimately that the prosecution had failed to prove the demand of the bribe amount and acceptance of it by the accused for doing an official favour and on this reasoning, the order of acquittal was passed.
14. In the aforesaid background, if the evidence is examined, insofar as the sanction order is concerned, it is admitted by the prosecution witnesses themselves that the sanction order was not issued by the competent authority viz., Chief Officer of the Zilla Panchayath. Therefore, the sanction order issued was without jurisdiction. However, as the accused did not raise any preliminary objection at an early state of the case and the trial went on ending in the order of acquittal, the issue concerning the validity of the sanction order, therefore, cannot be raised or considered at this stage.
15. Coming to the merits of the case, it is the case of the complainant that he gave an application on 17.3.1998 for a copy of the resolution dated 13.3.1998 In the course of his evidence, the complainant, who is examined as P.W.1, has also admitted that even before he gave his application as per Ex.P-6, he had obtained stay of the order of the panchayath from the Zilla Panchayath. However, there is no specific mention by the complainant that he had obtained stay of the resolution dated 13.3.1998 Therefore, the question of the complainant also having a copy of the resolution dated 13.3.1998 with him when he made the application on 17.3.1998 cannot arise and the submission put forward in this regard by the learned counsel for the respondent, therefore, cannot be accepted.
16. Coming to the demand and acceptance of the bribe amount, P.W.1, who is the complainant, has deposed in his evidence that he went and asked the accused about the copy application and the accused asked him about the money as demanded by the accused and asked to come after some time. P.W.1 replied that he had got the money and paid the tainted money. After receiving the amount, the accused counted it with the assistance of both the hands and kept the money in his left side shirt pocket and asked the complainant to come after one hour. He has also deposed that when he gave the money to the aecused, P.W.2 Lokesh was also present. The witness has further deposed about the solution turning into pink colour when the wash of the accused's shirt was taken. Ex.P-3 is the trap mahazar referred to by P.W.1
17. In the cross-examination also, P.W.1 has reiterated that the accused asked for the money and he handed over the cover to the accused and the accused kept it in his shirt pocket. It is also in the cross-examination of P.W 1 that the cover was broke open by asking the accused to break it and the money was taken out and the Inspector directed the accused to open the cover and then the accused was asked to count the notes with his hands.
18. The prosecution treated P.W.1 hostile as he had given a different theory as to the handing over of the cover to the accused and cross-examined him. P.W.1 once again stated that he gave the amount directly to the accused and the accused counted it and kept it in the pocket and, thereafter signal was given and hand wash of the accused was taken and then the money was sealed in a cover. During the cross-examination by the defence, P.W.1 has stated that the police recovered the cover with the money from the accused and then the hand wash of the accused was taken.
19. P.W 2 Lokesh is the shadow witness and he has also corroborated P.W 1 by deposing in his evidence that P.W 1 talked to the accused and the accused demanded money. P.W.1 paid the money and the accused received the tainted money and kept it in his left side shirt pocket and then goes on to say that the money was recovered from the cover given to the accused and the accused received the money with his right hand and counted with the assistance of both the hands and kept in his pocket. P.W.2 says that he was present when the money was paid and he could also see the transaction and hear the conversation.
20. Thus, the evidence of P.Ws.1 and 2, who are the material witnesses, goes to show that the accused demanded the bribe amount and it was given to him and the hand wash of the accused tested positive. Though there are some discrepancies in the evidence with regard to the manner of giving the amount, whether directly into the hands of the accused or in a cover, the fact that is established by the prosecution is that, the accused received the bribe amount and put it into his shirt pocket.
21. The receipt of the bribe amount by the accused is also confirmed by the explanation given by the accused himself during the trap mahazar. The accused during the course of the trap mahazar has admitted receipt of the amount by him, but gives the explanation that it was received by him towards the tap service charges. Specifically in the explanation the accused has stated in Ex.P3 trap mahazar that, as number of persons were present, he kept the amount in his pocket. Therefore, the receipt of the bribe amount by the accused is established both from the evidence of PW-1 and PW-2, as well as the explanation given by the accused himself. Therefore, whether the money was received along with the cover or without the cover is insignificant aspect so long as the accused has admitted the receipt of the bribe amount by him. The hand wash of the accused turned the solution into pink colour also confirms that the accused had received the bribe amount.
22. Thus, the evidence of the prosecution witnesses, in particular the complainant PW-1 and the shadow witness PW-2 coupled with the explanation given by the accused gives no room to doubt the prosecution having established the element of demand and acceptance by the accused. The explanation given by the accused only goes to show that he admits receipt of the bribe amount, though his explanation that the amount was received towards the tap charges has not been supported by any further document or evidence placed by the accused. Even in the 313 statement the accused remains silent and has not taken the stand that he received the amount towards the tap charges.
23. The trial court though has referred to the evidence let in by the prosecution, has totally missed the bus by focussing on the documents relating to the northern boundary in the sale deed etc. The question before the court was, whether the accused had demanded and accepted the bribe amount. Unfortunately, throughout the judgment running into 31 paragraphs, the learned trial judge has totally left out of consideration the main evidence stressing upon the accused demanding the bribe amount and accepting the same from the complainant. There is no discussion of the evidence of PW-1 and PW-2 and the explanation given by the accused in the entire judgment. It is a case of the trial court appreciating the evidence and leaving out the most essential part of the evidence placed by the prosecution. In other words, the approach of the trial court was, while counting the trees, missing the wood. As such, the evidence appreciation by the trial court is totally erroneous and the finding recorded is also perverse in nature.
24. As far as the sanction aspect is concerned, the trial court in the course of its judgment, has not observed anywhere that want of proper sanction has caused any prejudice either to the accused or has there been any failure of justice on that account. Moreover, the appeal filed by the State is directed against the finding of the trial court particularly insofar as the aspect of the accused accepting the bribe amount after demand made by him. The trial court itself has observed that, it is not a fit case to return the complaint for complying with the sanction. In other words, the trial court did not see any failure of justice being occasioned to the accused on account of the error in the sanction order. The error which is referred to in sub-section (3)(a) to section 19 has been explained in the explanation as to include competency of the authority to grant sanction. The accused has also not raised such objections at the earlier stage of the proceedings.
25. The decisions cited by the learned counsel for the respondent therefore will have to be viewed from the facts and circumstances of the case on hand. It is not a case where it can be said that two views are possible from the evidence on record. The only view that is possible is that, the accused demanded the bribe amount from the complainant, accepted the same and put the money into his pocket and his hand wash turned the solution into pink colour. Added to this, the accused himself has accepted in his explanation during the trap mahazar that, he did accept the bribe amount from the complainant though on the ground of the amount being towards tap service charges. Therefore, the decision referred to by the learned counsel for the respondent that where two views are possible, one in favour of the accused will have to be accepted, cannot be applied to the instant case and so also the decision concerning the sanction order.
26. For the aforementioned reasons and in view of the Apex Court also holding in the case of M. Narasinga Rao v. State of Andhra Pradesh (2001 Crl.L.J.515) that, once there is acceptance of gratification, the presumption u/s 20 will have to be compulsorily drawn and the said presumption cannot be left to the discretion of the court. Once the prosecution has proved that the accused has received the gratification from the complainant, in such circumstances, the court has to draw a legal presumption that the said gratification was accepted as reward for doing public duty. One other aspect to which reference has to be made, in the light of the argument addressed by both sides is as to whether the application was pending with the accused or not.
27. The evidence on record indicates that the application itself was recovered from the accused as is spoken to by the investigating officer viz., PW-5. PW-5 Jayraj, the police Inspector has deposed in his evidence that the accused produced four documents and one of them is the application dated 17.3.1998 filed by the complainant. It is also the evidence of this witness in the cross examination that the accused was also holding the post of SDA cum bill collector and it was the duty of the SDA cum bill collector to receive the application and place it before the Secretary for necessary orders. Therefore, recovery of the application from the accused strengthens the case of the prosecution. Thus, seeing from the entire evidence on record, the prosecution has proved beyond all reasonable doubt the demand made by the accused and acceptance of the bribe amount by the accused and consequently the trial court could not have acquitted the accused. When the evidence is very convincing and direct on the issue before it, the finding recorded is perverse in nature and liable to be interfered with in this appeal.
28. For the aforementioned reasons, the respondent is liable to be convicted in respect of Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and he is accordingly convicted for the aforesaid offences.
29. Heard on the question of sentence. Submission made by the learned counsel for the Lokayukta is that, the court may impose sentence as per law. On the other hand, submission of the learned counsel Sri. Subramanya for the respondent is that, minimum sentence be awarded. Having thus heard, the following order is passed.
1. The State appeal is allowed.
2. The acquittal of the respondent by the trial court is set aside and instead, he is convicted in respect of the offence u/s 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. In respect of the conviction u/s 7 of the P.C Act, the respondent is sentenced to undergo 6 months S.I with Rs. 3,000/- fine and in default of payment of fine, to undergo S.I for one month. In respect of the conviction u/s 13(1)(d) r/w 13(2) of the P.C Act, the respondent is sentenced to undergo S.I for one year and to pay a fine of Rs. 5,000/- and in default of payment, to undergo S.I for two months.
3. Substantive sentences shall run concurrently and the respondent is entitled to set off in respect of the period, if any, already spent in custody.
4. The trial court to take steps for compliance with the aforesaid directions.