- (1.) THIS appeal is by the accused, questioning the Judgment of conviction and order of sentence.
(2.) THE essential facts of the case, leading up to this appeal, with reference to the rank of the parties before the Trial Court are as follows: H.S. Gangadharappa/PW-9, who was working as Lok Ayuktha Inspector at Shimoga from 13.7.2000 to 7.3.2002, received a oral complaint from Y.R.Veereshappa/PW-3, which was reduced into writing vide Ex.P12. It was alleged by PW-3, that when he approached the accused, who was working as the Assistant Director of Horticulture, Zilla Panchayat Office, Shimoga, on 18.5.2001, in a matter relating to payment of subsidy, the accused demanded payment of 5% of subsidy amount, which worked out to be Rs.375/-, i.e., for issuing of a subsidy cheque of Rs.7,500/-. When bargained, the amount was reduced to Rs.300/- and that, he was asked to approach on the following day, with cash of Rs.300/-. Not willing to pay the bribe, PW-3 approached PW-9, at about 4.00 p.m., on 18.5.2001. PW-9 reduced the complaint into writing, obtained the signature of PW-3, registered a case in Crime No.4/2001 for the offences under Ss.7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and sent the FIR/Ex.P22 to the Court. PW-9 decided to lay a trap. PW-9 sent requisitions, one to the Joint Director of Collegiate Education and another, to the office of the Assistant Commissioner of Commercial Taxes, to depute the staff to be the witnesses. PWs.4 and 5 arrived at 6.00 p.m., and they were asked to come at 8.30 a.m., on the following day. PWs.5 and 6 came to the office of the Lok Ayuktha Police Inspector at 8.30 a.m., on 19.5.2001. PW-9 introduced PW-3 to the witnesses and read over the complaint to both the witnesses. PW-3 gave Rs.300/-, of Rs.100/- denomination notes and the same was treated with phenolphthalein powder. PW-9 gave the demonstration regarding preparation of Sodium Carbonate solution and washing of hands test. THE entrustment panchanama/Ex.P19 was prepared and was signed by the complainant, the two independent witnesses and other police officials. At about 1.00 p.m., the raiding party, headed by PW-9 left in a Jeep. THE complainant/PW-3 and shadow panch witness-P.K. Purushotham/PW-6, were asked to get down from the Jeep and proceed towards the office of the accused by foot and were directed to hand over the tainted currency notes, if bribe is demanded by the accused and to give the pre-determined signal. THE other members of the squad followed them to some distance and hid their presence near the office of the appellant. Complainant/PW-3 and shadow panch witness/PW-6 went inside the office of the appellant at about 1.20 p.m. Appellant, who was standing in the hall, on noticing the complainant, called him to his chamber. Complainant requested the appellant to issue the cheque, to which the accused asked the complainant, whether, he brought the money as demanded on the previous day. PW-3 answered in the affirmative and took out cash of Rs.300/- from the left pocket of his shirt. THE appellant received said cash by his right hand and kept it in the inner pocket of the front side of his pant and thereafter, complainant was guided by the accused to collect the cheque from the clerk. Accordingly, the complainant came out from the chamber of the appellant, went to the clerk by name Sunitha/PW-7, sitting in the hall and collected cheque for Rs.7,500/-, after signing the receipt and the register, by noting the date and time as 19.5.2001, at 1.30 p.m. THEreafter, PW-3 came outside the office and gave pre determined signal to the raiding party. PW-9, with the raiding party, immediately entered the chamber of the appellant and caught hold the hands of the accused. THE complainant pointed out the accused and said that the accused had demanded and accepted the bribe money. PW-9 asked the accused to produce the bribe money. THEreafter, the hands of the accused were washed with sodium carbonate solution and the hand wash of the accused turned into pink colour. THEreafter, trap mahazar (Ex.P16) was prepared, the currency notes given by the accused were verified with the currency notes mentioned in the entrustment mahazar (Ex.P19) and thereafter the police seized the pant (M.O.1) of the accused and the left side pocket of the accused dipped into the solution, which turned pink colour. PW-9 seized the papers pertaining to the subsidy application given by the complainant and prepared the trap mahazar/Ex.P16. THEreafterwards, obtaining the Sketch of the scene of offence/Ex.P2 from PW-2, the report from the chemical examination (Ex.P23) and after completion of investigation, by obtaining the sanction order/Ex.P1 from PW-1, to prosecute the accused, PW-9 filed the charge sheet, which was registered as Special (P.C.) Case No.5/2002, for the offences punishable under Ss.7, 13(1)(d) r/w S.13(2) of the Act, on the file of the Special Judge, Shimoga. THE accused appeared and when the accusation was put to him on 13.11.2003, denied the charge and claimed to be tried. THE prosecution examined PWs.1 to 9 and marked Exs.P1 to P23 and MOs.1 to 13. Accused when examined under S.313 Cr.P.C., it is a case of mere denial. THE accused did not lead any defence evidence. Keeping in view the rival contentions and after appreciating the evidence, the learned Special Judge arrived at the conclusion that the prosecution has proved beyond doubt that the accused has committed the offences punishable under Ss.7, 13(1)(d) r/w 13(2) of the Act. THE accused was sentenced for the offence under S.7 of the Act, to undergo simple imprisonment for a period of 6 months and pay fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for a period of 2 months. THE accused was sentenced for the offences under S.13(2) of the Act, to undergo simple imprisonment for a period of one year and pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for a further period of 2 months. THE substantive sentences were ordered to run currently. Sri Vijaykumar Y.H., learned advocate, contended that, neither the complaint nor the testimony of the witnesses examined, establish that there was any demand for payment of bribe by the accused and the said core fact having not been proved, Trial Court has committed error and illegality in finding the accused guilty. He contended that the impugned Judgment suffers from perversity of approach and deserves to be set aside. He further contended that the appellant was falsely implicated by PWs.3 and 9. Smt. T.M. Gayathri, learned advocate, on the other hand, referred to the record of the case and contended that the charges leveled against the accused has been proved beyond reasonable doubt and there is nothing on record, which would remotely suggest that the appellant has been falsely implicated. Learned counsel further submitted that in view of the clinching evidence placed on record by the prosecution with regard to the demand and acceptance of the bribe amount by the accused, the trap conducted by PW-9 being successful, the prosecution having brought home the charges leveled against the accused, learned Trial Judge is justified in passing the Judgment of conviction and the order of sentence. Perused the record. The learned Trial Judge has taken note of the facts as regards the presence of the accused in his chamber, the demand made by him with PW-3, in the presence of the shadow panch witness/PW6, the delivery of the subsidy cheque/Ex.P14 to PW-3 by PW-7, the absence of any enmity between the complainant and the accused, the credible evidence of the prosecution witnesses, the recovery of the bribe amount and the inability of the accused to rebut the presumption under S.20 of the Act, the successful trap proceedings conducted and all other facts and circumstances establishing the charge framed against the accused. In view of rival contentions and the record of the case, the point for consideration is: Whether the prosecution has established that the accused being a public servant by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself a pecuniary advantage of on 19.5.2001 in his office from the Rs.300/- complainant and thereby committed the offences punishable under Ss.7 and 13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 ?
(3.) THE prosecution has examined 9 witnesses. PW-3 is the complainant. PWs.5 and 6 are independent trap witnesses. PW-1 has deposed about the sanction accorded (Ex.P1) for prosecution of the accused. PW-2, an Engineer, prepared the sketch/Ex.P2. PW-4, Deputy Director of Horticulture furnished the service particulars of the accused as per Ex.P20. PW-8 provided the photocopies of the relevant records. There is no dispute that the appellant is a public servant. To find out whether there was a demand for illegal gratification and that the gratification was given to the accused, the evidence of complainant/ PW-3 and the shadow panch witness/PW-6 is material. It is clear from the evidence of PW-3, that he has clearly stated about the demand and acceptance of bribe of Rs.300/- on 19.5.2001 by the accused. There is corroboration from the evidence of PW-6. The evidence of PWs.3 and 6 is consistent with regard to the demand and also the recovery of Rs.300/- from the pant pocket of the accused is concerned. The defence taken by the accused in his statement/Ex.P13 that the amount was given to him by the accused for expenses has not been established. With regard to the demand of the bribe is concerned, PW-3 has said that the accused asked him as to whether he had brought the money and the complainant answered in the affirmative and that the money was given. PW-6 has heard the conversation between the complainant, the accused and has also witnessed the handing over of the tainted currency notes (M.O.3) by the complainant to the accused, who, upon receipt of the same, kept in his pant pocket. The evidence of PWs.3 and 6 is cogent and is reliable. ;