2015 ALL SCR 3804
H. L. DATTU, V. GOPALA GOWDA AND AMITAVA ROY, JJ.
B. G. Shivashankaraswamy Vs. The State of Karnataka
Criminal Appeal No.594 of 2007
2nd September, 2015.
Petitioner Counsel: Mr. R.S. HEGDE, Mr. SHANTI PRAKASH, Mr. RAJEEV SINGH
Respondent Counsel: Mr. V.N. RAGHUPATHY
Prevention of Corruption Act (1988), Ss.7, 13(2), 13(d) - Demand of bribe - Appeal against conviction - Appellant-Junior Asst. in the office of Deputy Registrar allegedly demanded bribe for issuance of provisional certificate - Defence of false implication taken on ground of prior enmity between appellant and complainant - Source of prior enmity is a previous incident where appellant had refused to give a provisional certificate to a lady - Held, if that be so, said lady would have filed complaint herself and not the third party i.e. complainant - Order of High Court as well as trial court and material on record showing that appellant's case failed to convince - Hence, conviction sustained - Appeal dismissed. (Paras 12, 13, 14)
JUDGMENT :- This appeal is directed against the judgment and order passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.290 of 1997, dated 30.06.2005 whereby the High Court has upheld the judgment and order of the Trial Court in SPL CC No.28/96 dated 18.03.1997.
2. The brief facts of the case are as follows: The appellant had been working as a Junior Assistant in the office of the Deputy Registrar, Bangalore University at the time of the alleged incident. In November 1992, the complainant (PW-2) approached the appellant for the issue of a provisional certificate. After multiple meetings, the appellant, stating that a payment would have to be made to his Superintendent for the issuance of provisional certificate, demanded a sum of Rs.50/- as bribe and PW-2 agreed to the same.
3. On 23.11.1992, PW-2 filed a complaint before the Deputy Superintendent of Police, Lokayukta, City Division (PW-6) who then registered a case as Crime No.24/92. Pre-trap proceedings, including smearing the currency with phenolphthalein powder were completed. Immediately thereafter, PW-2, together with the shadow witness (PW-1), went to the appellant's office and handed over the tainted currency notes to him. On PW-2's signal, the trap team, led by PW-8 entered the appellant's office and questioned him regarding the tainted currency notes given to him by PW-2. The tainted notes were seized and their chemical examination was completed. The appellant was arrested and then released on bail. Subsequently, on sanction for prosecution being received, the investigation was completed and a charge sheet was filed before the Trial Court.
4. Thereafter, on summons being issued, the appellant appeared before the learned Special Judge. After both sides were heard, charges were framed against the appellant for offences under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act"). The charges were read over and explained to the appellant who pleaded not guilty. Consequently, the case was committed to trial.
5. The prosecution examined 8 witnesses and produced 11 documents and 10 material objects. The appellant's statement was recorded under Section 313(1)(b) of the Code of Criminal Procedure (for short, "the Code") wherein he stated that he had been falsely implicated.
6. The Trial Court considered the evidence on record as also the arguments of the parties and noticed that the evidence on record was sufficient to prove that the appellant had demanded illegal gratification from PW-2 in return for showing official favour. The Trial Court further rejected the appellant's contentions that the prosecution's case was mala fide; that the tainted currency notes had been forcibly placed in his pant pocket by PW-2; and, that the order of sanction for prosecution was invalid. Therefore, the Trial Court concluded that the appellant was guilty of the offences charged against him and, vide judgment and order dated 18.03.1997, convicted the appellant and sentenced him to simple imprisonment for one year and a fine of Rs.1000/- for the offence under Section 7 of the Act and simple imprisonment for one year and a fine of Rs.1000/- for the offence under Section 13(1)(d) of the Act, with directions that both sentences would run concurrently.
7. Aggrieved by the order of conviction and sentence, the accused approached the High Court by filing a criminal appeal on the grounds, inter alia, that the Trial Court had failed to correctly appreciate the evidence on record; that the testimonies of the prosecution witnesses were inconsistent and could not be relied on; that the prosecution had failed to examine certain material witnesses; and, that, on the date of the alleged incident, PW-8 was not duly authorized to investigate the appellant's case.
8. By the impugned judgment and order, the High Court re-appreciated the entire evidence on record and observed that PWs 1 and 2 were both trustworthy witnesses and that the non-examination of one panch witness would not be fatal to the prosecution's case. The High Court further rejected the appellant's contention that PW-8 was not authorized to investigate the appellant's case. Therefore, the High Court concluded that the prosecution had been able to establish the appellant's guilt beyond reasonable doubt and there was no reason to interfere with the conviction and sentence imposed by the Trial Court.
11. Learned counsel for the appellant would submit that the appellant has been falsely implicated in this case due to prior enmity between him and the Superintendent of the department. The counsel further submits that the appellant was not present in his office on the date of the alleged incident since the said day was a holiday. Per contra, the respondent-State would support the judgment and order passed by the High Court.
12. After going through the judgment and order passed by the High Court as well as the Trial Court and the material on record, the appellant's case fails to convince us. The source of the prior enmity between the appellant and the Superintendent of the department alleged by the appellant is a previous incident where the appellant had refused to give a provisional certificate to one Ms.Uma Soumya, in whom the Superintendent of the department was interested. Given this fact, it is our opinion that, had the prosecution's case been false, then it would have been Ms.Uma herself who would have filed the allegedly false complaint and not PW-2, a third party. Further, there is sufficient evidence on record to show that it was common practice among the employees of the concerned university to voluntarily attend the office on Saturdays.
13. On the question of sentence, learned counsel for the appellant submits that given the appellant's advanced age, the fact that the alleged incident occurred in 1992 and the fact that the amount involved in the alleged incident was merely Rs.50/-, the sentence imposed on the appellant ought to be reduced. However, taking into consideration the seriousness of the offence, we find that the sentence imposed by the High Court is appropriate and cannot be further reduced.
14. In light of the aforesaid, we are of the considered opinion that in the instant case, no good ground exists for our consideration and interference. The appeal, being devoid of any merit, is liable to be dismissed and, is dismissed accordingly.
15. If the appellant is on bail, the jurisdictional police authorities are directed to take him into custody within a period of one month to serve out the remaining part of the sentence awarded by the High Court.