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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 09TH DAY OF JULY 2015

BEFORE

THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR

CRL.A.NO.165 OF 2010

BETWEEN: DR. S.R. CHOWDAIAH S/O. LATE S. RAMACHANDRAN AGED:61 YEARS OCC:RETD SERVICE, R/O. C/O. 1ST FLOOR, NO.6 SRIVARI VILLAGE 29TH MAIN, B.T.M., 2ND STAGE BANGALORE-560 076. …APPELLANT (BY SRI:C.H. JADHAV, SR. COUNSEL FOR C.H. JADHAV ASSOCIATES ) AND:- THE STATE OF KARNATAKA BY LOKAYUKTA POLICE MYSORE REPRESENTED BY STATE PUBLIC PROSECUTOR M.S. BUILDING BANGALORE-1. …RESPONDENT (BY SRI:VENKATESH P. DALWAI, ADV.,)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 11.1.2010 PASSED BY THE SPECIAL JUDGE, MYSORE IN SPL.CASE NO.53/2002- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1) (d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988, THE APPELLANT/ACCUSED SHALL UNDERGO IMPRISONMENT FOR ONE YEAR FOR THE OFFENCE P/U/S 7 OF THE PREVENTION OF CORRUPTION ACT, 1988 AND THE APPELLANT/ACCUSED SENTENCE TO UNDERGO IMPRISONMENT OF TWO YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND TO PAY A FINE OF RS.5,000/- FOR EACH OFFENCE, IN DEFAULT TO PAY FINE AMOUNT, FURTHER HE SHALL UNDERGO IMPRISONMENT FOR A FURTHER PERIOD OF THREE MONTHS FOR EACH OF THE OFFENCE, BOTH THE SENTENCES SHALL RUN CONCURRENTLY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY, PRADEEP D. WAINGANKAR. J., PRONOUNED THE FOLLOWING:

JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence dated 11.1.2010 in

Spl.Case No.53/2002 on the file Special Judge, Mysore,

whereby the appellant/accused has been convicted for

the offences punishable under sections 7, 13(1) (d) r/w

13(2) of the Prevention of Corruption Act, 1988(for short

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‘the Act’) and has been sentenced to undergo one year

imprisonment for the offence punishable under Section

7 and 2 years imprisonment for the offence punishable

under Section 13(2) of the Act and to pay fine of

Rs.5,000/-.

2. The case of the prosecution is that the appellant

(hereinafter called as ‘accused’) was working as Medical

Officer at K.R. Nagar General Hospital in Mysore

District. The cousin brother of the complainant(PW-1)

by name Lakaiah and his wife Rajamma had consumed

poison on 5.3.1999. The complainant brought and

admitted them in K.R. Nagar General Hospital at about

11.00 p.m. The accused was the duty Doctor. He

demanded a bribe amount of Rs.500/- from the

complainant for their treatment. He also informed the

complainant that if the amount of Rs.500/- is not paid,

he would refer the patients to Government Hospital at

Mysore. The complainant was not interested to give the

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bribe to the accused. So he lodged a complaint as per

Ex-P1 before the Lokayukta police station, Mysore. On

the basis of the complaint, PW-5-Santosh Kumar-Police

Inspector Lokayukta police station, Mysore registered

Crime No.3/1999 for the offences punishable under

Sections 7 and 13(2) of the Act and forwarded the FIR in

a sealed cover to the Special Judge, Mysore. Thereafter,

PW-5 arranged for trap. He secured the presence of the

complainant in the police station and two panchas viz.,

PW-2- V. Kantharaju, Second Division Assistant

working in Minor Irrigation Department, Mysore and

PW-3 Seetharama Sharma working in the very same

department. The complainant handed over three notes

of Rs.100/- denomination and four notes of Rs.50/-

denomination amounting to Rs.500/- to PW-5. The

notes were handed over to PW-2 to read the number of

the notes. PW-3 another pancha noted down the

number of all the notes. All the notes were smeared with

phenolphthalein powder. The notes were entrusted to

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the complainant, who kept the same in his pocket. The

importance of phenolphthalein test was demonstrated.

A panchanama was drawn for having entrusted the

notes smeared with phenolphthalein powder to the

complainant PW-1 known as ‘Entrusted panchanama’

as per Ex-P2. Instructions were given to the

complainant to go to K.R. Nagar hospital and approach

the accused and if he again demands bribe amount, to

hand over the tainted currency notes to the accused.

PW-2 was instructed to accompany the complainant to

the hospital and observe what transpires between the

complainant and the accused and thereafter narrate the

same to PW-5- Inspector. Thereafter, the police

Inspector PW-5, the complainant PW-1, two panchas

viz., PWs-2 and 3 went towards K.R. Nagar hospital in a

jeep. The jeep was stopped at a little distance from the

hospital, where all of them got down. PW-5 instructed

the complainant and PW-2 to go to the hospital and

approach the accused and if the accused still demands

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bribe amount, to hand over the tainted currency notes

and if he accepts the notes to come out and give a signal

by rolling the sleeves of his shirt. PWs-1 and 2 went to

the hospital. PW-1 approached the accused, who inturn

demanded the bribe amount of Rs.500/-. The

complainant handed over the tainted currency notes to

the accused, who accepted the same by his right hand

and kept in pant pocket. PW-1 came out from the

chambers of the accused and gave a pre-arranged signal

by rolling his sleeves to PW-5-Inspector and thereby

PW-5 alongwith PW-3 another pancha and his staff

rushed to the hospital and caught hold of the accused.

They recovered tainted three currency notes of Rs.100/-

and four tainted currency notes of Rs.50/- each from

the pant pocket of the accused. On enquiry with PW-2 -

a shadow pancha as to what transpired between the

complainant and the accused, PW-2 narrated that the

complainant approached the accused and enquired

about the condition of the patients and at that time,

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accused again demanded bribe amount of Rs.500/-.

Then the complainant handed over the tainted currency

notes to the accused, who in-turn accepted the notes

through his right hand and kept in his pocket. The

accused was asked to give his explanation. The accused

inturn gave his explanation Ex.P5 in his hand writing

stating that the said tainted currency notes have been

thursted in his pocket without demand for the same.

When the contents of the statement Ex.P5 were read

over to the complainant, he denied its correctness. The

pant of the accused was seized by providing him an

alternative pant. When the pant pocket of the accused

was dipped in Sodium Carbonate solution, the solution

turned into pink colour. A detailed trap panchanama

was drawn as per Ex-P3, the accused was brought to

the police station where he was arrested and produced

before the Special Judge. The statements of the

witnesses were recorded. The necessary case papers

pertaining to the patients were secured from the

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hospital. The statement of the Pharmacist working in

the hospital was recorded and after completion of the

investigation, entire investigation papers were placed

before PW-6- S.K. Thegginamani, Deputy Secretary,

Minority Department to accord sanction to prosecute

the accused. PW-6 upon going through the investigation

papers, being satisfied that prima-facie case has been

made out against the accused, accorded sanction to

prosecute the accused for the offences punishable

under sections 7 and 13(2) of the Act by issuance of a

sanction order Ex-P14. After obtaining the sanction

order, a charge-sheet came to be filed before the Special

Judge, who in-turn took cognizance and issued process.

3. The accused appeared. He denied all the

charges levelled against him. He was put on trial. The

prosecution in order to prove the charges examined as

many as seven witnesses as PW-1 to PW-7, marked Exs-

P1 to P12 apart from M.Os.1 to 9. On behalf of the

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accused, certified copy of the Inpatients Register was

marked as Ex-D1. The Special Judge upon hearing the

submission made by both the learned counsel and on

appreciation of evidence convicted the accused for the

offences punishable under sections 7 and 13(2) of the

Act and sentenced him to undergo simple imprisonment

for one year for the offence punishable under section 7

and two years for the offence punishable under section

13(2) of the Act, apart from imposing fine amount of

Rs.5,000/- by judgment dated 11.1.2010.

Questioning the legality and correctness of the

judgement of conviction and sentence, this appeal is

preferred by the accused.

I have heard the learned counsel for the appellant-

accused and the respondent-Lokayukta. Perused the

records.

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4. The learned counsel for the appellant-accused

would submit that the prosecution has failed to prove

the demand and voluntary acceptance of bribe money

by the accused by cogent and convincing evidence; that

the complainant, who has been examined as PW-1 has

turned hostile to the prosecution case; the evidence of

PWs-2 and 3 the so-called panchas cannot be believed

for the reason that both of them are Government

Servants and therefore, it cannot be ruled out that out

of fear of disciplinary proceedings, they have deposed

against the accused and above all, the accused has

been exonerated in disciplinary proceedings initiated

against him for the very same charge; their evidence is

also not free from contradictions; the trial Court without

proper appreciation of evidence passed an order of

conviction which has led to miscarriage of justice.

Hence, the learned counsel sought to set-aside the

judgment of conviction and sentence and to acquit the

accused of all the charges levelled against him. The

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learned counsel relied upon the decision of the Supreme

Court reported in 2010 (4) SCC 450 in a case of

Banarssi Das vs. State of Haryana, wherein it is held

that mere recovery of money from the accused by itself

is not enough in the absence of substantive evidence of

demand and acceptance.

5. Per-contra, the learned counsel for the

respondent-Lokayukta would submit that though the

complainant has turned hostile to the prosecution, the

prosecution has proved demand and voluntary

acceptance of bribe money by the accused by cogent

evidence of PW.2 and PW.3 the panchas. Even

otherwise, recovery of tainted currency notes from the

pocket of the accused is proved by the Ex.P5 the

statement of the accused given immediately after the

trap, wherein he has stated that the money was

thursted upon him. The learned counsel relied upon

the 5 Judge bench decision of the Supreme Court

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reported in 2012 AIR SCW 4815 in the case of State

of N.C.T of Delhi vs. Ajay Kumar Tyagi, wherein it is

held that exoneration in Departmental proceedings ipso

facto would not lead to exoneration or acquittal in a

criminal case.

6. In order to bring home the guilt of the accused,

the prosecution examined seven witnesses. PW-1- S.M.

Nagaraju is the complainant, who has turned hostile to

the prosecution case. PW.1 went to the extent of

deposing that he has not lodged any complaint against

the accused with regard to demand and acceptance of

bribe by the accused or for that matter recovery of

tainted currency notes. He was treated as hostile

witness by the prosecution and a detailed cross-

examination was made. All the suggestions made in the

cross-examination have been denied. The suggestion

made to him that he went to the hospital, enquired to

the accused about the health of the patient, the accused

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told him that he has given medicine worth Rs.500/- to

the patients which he has to repay the accused. He has

also denied the suggestion as false that he decided not

to give bribe amount of Rs.500/- to the accused, lodged

the typed complaint at about 3.30 p.m., on that day as

per Ex-P1. Though he has admitted his signature at Ex-

P1 complaint, in para 3 of his evidence, he has admitted

as true that the police secured two panchas after Ex-P1

was lodged; that they were introduced to him; that he

gave Rs.500/- i.e., three notes of Rs.100/-

denomination and four notes of Rs.50/- denomination

and one of the panchas counted the notes and disclosed

the notes to another pancha who noted the same. He

also admits that phenolphthalein powder was applied to

those notes. He has pleaded complete ignorance as to

whether the very same powdered coated notes were

counted and verified by the panchas. Though he admits

that the notes were kept in the shirt pocket of the

complainant, he has admitted for having put his

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signature at Ex-P2 entrustment panchanama. But he

pleaded ignorance that whether it was signed by

panchas. Further, he admits in para 4 of his evidence

that he went and approached the accused and

requested the accused not to discharge the patients,

since he paid Rs.500/- and accused accepted those

notes by his right hand and kept on the table. He has

denied the suggestion that the accused had kept those

notes in his pant pocket. Further, he stated that he

does not know whether the police came after he gave the

signal, identified the accused for demand and

acceptance of bribe from him and that the accused was

apprehended. Further, he has deposed that he does not

know whether hand wash of the accused was taken in a

Sodium Carbonate solution, which turned into pink

colour, since he was outside the hospital. He has

further deposed that he does not know whether the

police seized the powdered coated notes from the pant

pocket of the accused and as to whether the pant of the

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accused was seized and the pocket was washed in the

Sodium Carbonate solution. He has categorically

deposed as false that the accused demanded and

accepted bribe amount of Rs.500/- and he lodged the

complaint against him. He has also deposed as false

that the proceedings under Ex-P2 entrustment

panchanama and Ex-P3 trap panchanama were

conducted at his instance in pursuance of his

complaint. He has also denied the suggestion that the

accused demanded and received bribe amount of

Rs.500/- from him and he was trapped.

7. In his cross-examination by the counsel of the

accused, a futile attempt has been made to show that

one Shashi, Lab Technician and one Lokesh, who were

working in a private hospital opposite to Government

hospital, took the complainant to the Lokayukta office,

where the complainant gave Rs.500/- to Shashi in the

Lokayukta office. In the cross-examination, PW-1 stated

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that he does not know what was done in the office,

though he admits his signature having taken in some of

the papers. Thus, upon closer scrutiny of the evidence

of PW-1-a hostile witness, the only conclusion that can

be reached is that the complainant is not a reliable

witness. He has given complete go-bye to the contents of

his complaint. His evidence is of no assistance to the

prosecution either to prove the demand of bribe amount

or to acceptance of bribe amount by the accused.

PW-2 V. Kantharaju is examined as Shadow

witness. His evidence is that he has been working as

Second Division Assistant in the office of Minor

Irrigation in 1999. On 6.3.1999, he was directed to go to

Lokayukta police station by the Executive Engineer

alongwith PW-3 Seetha Rama Sharma- another official

working in the same department. When PWs-2 and 3

had been to Lokayukta office, the complainant was very

much present. The contents of the complaint were read

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over to the complainant in the presence of PW-3,

thereafter, entrustment panchanama was drawn

followed by trap panchanama for having trapped the

accused while accepting the bribe amount of Rs.500/-

from the complainant. If we read the evidence of PWs-2

and 3, both of them have by and large supported the

case of the prosecution in its entirety. But the fact

remains that the complainant, who lodged the

complaint has turned hostile to the prosecution case.

Moreover, both the panchas are Government Servants

and being Government servants, there is likelihood that

they would support the prosecution against the accused

because of fear of initiation of disciplinary proceedings,

if they do not support the prosecution case. Be that as it

may, the evidence of PWs.2 and 3 pancha to

entrustment panchanama and trap panchanama

respectively has to be appreciated with reference to the

evidence of PW.1 the complainant and not in isolation.

Further, the accused has been exonerated in

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disciplinary proceedings initiated against him for the

very same charges where the standard of proofs is lower

than that of criminal prosecution.

PW-4 S. Swamy, was working as Senior

Pharmacist in K.R. Government Hospital. He admits

that the accused is known to him. He was working as

District Health Officer. He has admitted the trap of the

accused, but he has deposed that he was not present at

the time of trap. Further, he has admitted that when the

relatives of the complainant were admitted on account

of consumption of poison, the injection required for the

same were stocked in the hospital and that there was

documentary evidence for having administered five such

injections to the patients who were the relatives of the

complainant by the incharge duty Doctor.

PW-5 Santosh Kumar is the police inspector,

Lokayukta police station. He has spoken about the

detailed proceedings conducted by him in his office

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which culminated into an entrustment proceedings Ex-

P2. He has also spoken in detail as to how the accused

was trapped while accepting bribe from the complainant

in the presence of panchas, recovery of notes from the

pant pocket of the accused, statement given by the

accused by way of explanation as per Ex.P5 as to how

he came in possession of notes, the trap panchanama

that was drawn as per Ex-P3 and filing of the charge-

sheet after obtaining sanction from the competent

authority.

PW-6 S.K. Thegginamani is the Sanctioning

Authority, who has spoken about the grant of sanction

to prosecute the accused under the provisions of the

Prevention of Corruption Act. There is no challenge to

the sanction order Ex.P14.

PW-7 M. Krishnappa, Incharge Police Inspector in

Lokayukta police station, who took up further

investigation from PW-5 and upon securing the sanction

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order from the competent authority filed charge-sheet

against the accused person for the aforesaid offences.

8. Thus, the important witnesses are PW-1-the

complainant, PWs-2 and 3 panchas and PW-5

Investigation Officer. Sofar as evidence of PW-1

complainant is concerned, he is treated as hostile

witness since he has not supported his own case.

Though he has spoken about the contents of the

complaint to some extent here and there, that will take

us nowhere near the charges levelled against the

accused.

9. Of-course, PWs-2 and 3 have supported the

case of the prosecution in its entirety. But the fact

remains that both of them were Government servants

working in the Department of Minor Irrigation. On the

requisition of PW-5 Police Inspector, Lokayukta police

station, they were deputed by the Executive Engineer to

go to the police station and co-operate. Since they were

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Government Servants, they will have to support the case

of the prosecution. If, for any reason, they turn hostile,

they will have to face the consequences by way of

disciplinary proceedings against them. Therefore, their

evidence has to be considered and appreciated with

reference to the evidence given by the complainant PW-1

and in the light of the fact that the panchas were the

Government Servants. When the complainant went to

the extent of deposing that he has not at all lodged the

complaint and that the accused neither demanded nor

accepted bribe money from him nor the accused was

trapped, it is rather difficult to believe the evidence of

PWs-2 and 3 to come to the conclusion that the accused

demanded and accepted bribe money from the

complainant. Moreover, it is submitted that in the

Departmental proceedings initiated against the accused

in respect of very same charges, he has been

exonerated, meaning thereby, the charges levelled

against the accused proved to be false. Of-course in a

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decision of the Supreme Court relied upon by the

learned counsel for the respondent-Lokayukta reported

in 2012 AIR SCW 4815, it has been held that

exoneration in Disciplinary proceedings ipso-facto

would not lead to exoneration or acquittal in a criminal

case. The accused in this case is seeking his acquittal

not only on the ground that he has been exonerated in

Departmental proceedings, but he seeks his acquittal

having regard to the evidence placed on record by the

prosecution especially that of complainant PW.1 apart

from his exoneration in Departmental proceedings. The

decision relied by the learned counsel for the

respondent-Lokayukta reported 2012 AIR SCW 4815

cannot be made applicable to the facts of this case. The

facts of the case involved in the said decision are that

one Ajay Kumar Tyagi who was workings as Junior

Engineer with the Delhi Jal Board demanded bribe

amount from one Surinder Singh, a police constable

with the Delhi Police for water connection in the name

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of his wife. He lodged a report with Anti-Corruption

Branch, thereby a trap was laid, the accused demanded

and accepted bribe of Rs.1,000/-. A case was registered

under Sections 7 and 13(2) of Prevention of Corruption

Act. Investigation was completed, sanction obtained

and charge-sheet was filed. Against the very same

charges, Departmental Proceedings were initiated

against the accused, an enquiry was held and the report

was submitted by the Enquiry Officer to Disciplinary

Authority to the effect that charge is not proved. But,

the Disciplinary Authority did not act upon the Enquiry

Report for a quite long period of time probably for the

reason that criminal case was pending before the

Special Judge. The accused filed writ petition to direct

Disciplinary Authority to act on the report submitted by

the Enquiry Officer. A mandamus was given, whereby

the report of the Enquiry Officer was accepted by

Disciplinary Authority and exonerated the accused in

the Departmental Proceedings. Accused filed a petition

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under Section 482 of Cr.P.C. before the High Court to

quash criminal proceedings before Special Judge on the

ground that he has been exonerated in respect of the

very same charge in the Departmental Proceedings. The

High Court allowed the petition under Section 482 of

Cr.P.C. and quashed the criminal proceedings pending

before the Special Judge. It is this order passed by the

High Court is challenged before the 5 Judge bench of

the Supreme Court. The Supreme Court upon referring

to all the earlier decisions held that exoneration in

Departmental Proceedings ipso facto would not lead to

exoneration or acquittal in a criminal case.

10. The decision of the Supreme Court cannot

be made applicable to the facts of this case for the

reason that we are dealing with a criminal appeal

against a conviction of the accused in a trap case. We

are not dealing with an application under Section 482 of

Cr.P.C. to quash the proceedings before the Sessions

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Judge at the threshold. But, the fact remains that

criminal cases have to be decided on the basis of the

evidence adduced therein. The exoneration of the

accused in Departmental Proceedings is one of the

circumstances in favour of the accused to seek an order

of acquittal. Thus, from the nature and quality of

evidence placed on record by the prosecution and in

view of exoneration of the accused in Departmental

Proceedings initiated in respect of the very same charge

where the burden to prove is rather less, it is difficult to

hold that the prosecution has been able to prove the

demand and acceptance of bribe and recovery of tainted

currency notes from the accused. Moreover, the

prosecution has not made an attempt to involve

independent witnesses. Under such circumstances, the

learned Special Judge ought to have acquitted the

accused by giving benefit of doubt. On re-appreciation

of evidence, I am of the considered view that the case as

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made out by the prosecution is shrouded with doubt

and the benefit of doubt should go to the accused.

11. Accordingly, I pass the following:-

ORDER

The appeal is allowed. The judgment dated

11.1.2010 in Special Case No.53/2002 on the file

Special Judge, Mysore convicting the accused and

sentencing him for the offence punishable under

sections 7 and 13(2) of the Act is hereby set-aside.

The appellant-accused is acquitted of all the charges

levelled against him.

Sd/- JUDGE

mn/pmr