2015 ALL SCR 1830
FAKKIR MOHAMED IBRAHIM KALIFULLA AND ABHAY MANOHAR SAPRE, JJ.
Kallappa Mallappa Kamble Vs. State of Karnataka
Criminal Appeal No.1765 of 2012
12th February, 2015.
Petitioner Counsel: Mr. RAJESH MAHALE
Respondent Counsel: Mr. V.N. RAGHUPATHY
Prevention of Corruption Act (1988), Ss.7, 13 - Illegal gratification - Evidence and proof - Prosecution case that accused working as In-charge Village Accountant in office of land revenue records demanded and accepted bribe of Rs.1,000/- from complainant to pass appropriate orders on her mutation application - Complainant's application for mutation of her name was pending consideration in land record section, not disputed - Currency notes kept in shelf of his room by accused turned into pink colour when mixed in sodium bicarbonate solution along with his hands - Defense version that complainant was forcing accused to accept money not believable - Twin requirements of demand and acceptance of illegal gratification of Rs.1,000/- were proved on basis of evidence - Conviction and sentence for offence punishable u/Ss.7, 13(1)(d) r.w. S.13(2) is proper. (Paras 16, 17, 19, 20, 21)
C.M. Sharma Vs. State of Andhra Pradesh, 2010 ALL SCR 2808=(2010) 15 SCC 1 [Para 19]
ABHAY MANOHAR SAPRE, J. :- This criminal appeal is filed by the appellant/accused against the judgment and final order dated 25.11.2011 passed by the High Court of Karnataka in Criminal Appeal No. 1262 of 2006.
2. By impugned judgment, the High Court allowed the appeal filed by the State and reversed the judgment of the trial court which had acquitted the appellant/accused for the offences punishable under Sections 7 and 13 (1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short "the Act') and convicted the appellant for the aforementioned offences and, accordingly, directed him to undergo sentence of six months' RI and to pay a fine of Rs. 1000/- in respect of conviction for the offence punishable under Section 7 and to undergo one year RI and to pay a fine of Rs. 2,000/- in respect of conviction for the offences punishable under Sections 13(1)(d) read with 13 (2) of the Act with respective default clauses therein to suffer further imprisonment. Both the sentences were directed to run concurrently.
3. The question which arises for consideration in this appeal is whether the High Court was justified in convicting and awarding sentences to the appellant for the offences specified above?
4. In order to appreciate the grievance of the appellant, relevant facts, which lie in a narrow compass, need mention infra.
5. Malutai - a lady living in the Village Bad in Taluk Hukkeri (Karnataka) purchased small piece of land measuring 1 acre 35 guntas (RS No 109/2A) for her livelihood from one Malakappa Ishwar Sankeshwar by registered deed of sale in the year 1994. She after purchase of the land made an application for mutation of her name in respect of said land in the office of land revenue records.
6. The appellant (accused) at that relevant time was working as In-charge-village Accountant in the office of land revenue records in Village Bad and was residing in near by place called - Sankeshwar. On 17.5.95, Malutai - complainant (PW-1) approached the appellant and requested him to entertain her mutation application and pass appropriate orders on her mutation application by issuing Katha Extract in her favour. But the appellant illegally insisted and demanded bribe of Rs. 1000/- from Malutai (PW-1). Malutai (PW-1), unwilling to pay the bribe amount, approached the Lokayukta Police and, accordingly, lodged a complaint with the Deputy Superintendent of Police, Lokayukta Police, Balgaum on 19.05.1995 about the incident against the appellant as per (Ex-P-1).
7. The Lokayukta Police officials found substance in the complaint and, accordingly, registered the complaint for giving effect to it. Malutai (PW-1) gave 10 currency notes of Rs. 100/- denomination. Each note was then applied with phenolphthalein powder. These currency notes were given to shadow witness (PW2) for counting and for noting down their numbers. The officials then asked Malutai (PW-1) and V.D. Desai (CW-2) to visit the appellant at his residence on 19.05.95 around 7.10 P.M. Malutai (PW-1) was asked to give the aforesaid currency notes to the appellant on his making demand of bribe amount.
8. Accordingly, Malutai (PW-1) accompanied by V.D. Desai (CW-2) visited the appellant's residence and met him. The appellant demanded the bribe amount of Rs. 1000 from Malutai (PW-1), which she gave to him. Malutai (PW-1), thereafter came out of appellant's house and gave signal to the sleuths of Lokayukta Police, who were standing out side the appellant's house. Shadow witness (PW-2) and IO (PW-5) then came inside. The appellant's hands and that of the currency notes, which he had kept in the shelf, were immersed in the chemical solution, which on being dipped, turned into pink colour (MO-5).
9. The raiding party then prepared the panchnama Ex-P-2 and after completing the necessary investigation and obtaining necessary sanction (Ex-P-8), filed the charge sheet against the appellant for his prosecution in relation to the commission of offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Act. The prosecution examined 6 witnesses and produced 20 documents apart from 5 M.Os. The statement of appellant was recorded under Section 313 of the Code of Criminal Procedure. . He, however, did not lead any evidence in his defence.
10. The Trial Court by judgment dated 28.11.2005 held that mandatory requirements of Section 7 read with Section 13 of the Act namely; demand of illegal gratification and its acceptance were not proved against the appellant beyond reasonable doubt and hence, he could not be convicted for the twin offences. He was, accordingly, acquitted.
11. Aggrieved, the State filed criminal appeal before the High Court after obtaining leave to file appeal against the order of acquittal. The High Court, by impugned judgment, allowed the State's appeal and while setting aside the appellant's acquittal, convicted the appellant (accused) of the twin offences. It was held that twin requirements of Section 7 read with Section 13 of the Act namely; demand of illegal gratification and its eventual acceptance by the appellant (accused) from Malutai (PW-1) were duly proved with the evidence adduced by the prosecution. The appellant was thus held guilty for commission of the offences punishable under Sections 7, 13(1)(d) read with 13(2) ibid and he was, accordingly, awarded sentences as mentioned above. It is against this judgment; this appeal is filed by the accused - appellant herein by special leave.
12. Learned counsel for the appellant while assailing the legality and correctness of the impugned judgment contended that twin requirements of Section 7 read with Section 13 of the Act namely; demand of illegal gratification and its eventual acceptance by the appellant from Malutai (PW-1) were not proved beyond reasonable doubt by the prosecution and hence, the appellant's conviction is bad in law. Learned counsel elaborated these submissions by taking us through the evidence on record. Learned counsel lastly submitted that the reasoning, appreciation of evidence and the conclusion reached by the trial court, which resulted in appellant's acquittal, was just and proper and hence, the High Court should have upheld the order of the trial court by dismissing the appeal filed by the State.
13. Per contra, learned counsel for the respondent, in reply, contended that no case is made out to interfere with the impugned judgment, as according to him, twin mandatory requirements of Section 7 read with Section 13 of the Act, namely; demand of illegal gratification and its acceptance by the appellant from Malutai (PW-1) were made out beyond reasonable doubt and hence, the appeal deserves dismissal by upholding the appellant's conviction.
14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in any of the submissions of the learned counsel for the appellant.
15. With a view to satisfy ourselves as to whether a case of demand and acceptance of illegal gratification which are sine qua non for sustaining conviction under Section 7 read with Section 13 ibid of the accused are made out, we perused the entire evidence. Having so perused, we are also of the view that twin requirements of demand and acceptance of illegal gratification were rightly held proved against the appellant by the High Court and hence, no fault can be found in the finding of the High Court on this material issue for holding the appellant guilty of the offences.
16. On perusal of evidence of Malutai (PW-1)) and the shadow witness (PW-2), we find that it is consistent on the issue of demand and acceptance of illegal gratification from the complainant and is without any contradiction. There is, therefore, no reason to disbelieve the testimony of Malutai (PW-1) when she deposed that the appellant made a demand of Rs. 1000/- from her for deciding her mutation case. It is not in dispute that Malutai (PW-1) had made an application for mutation of her name and the said application was pending consideration in the land record section. It is also not in dispute that appellant was In-charge of the said section. It is also not in dispute that ten currency notes of Rs. 100/- denomination each were given to the appellant by Malutai (PW-1), which the appellant kept in the shelf of his room and the said currency notes changed their colour (pink) when mixed in the sodium bicarbonate solution along with his hands. PW-5, a police inspector (I.O.) of Lokayukta Police, who investigated the case, duly proved the articles. We have not been able to find any evidence of the defense to discard the evidence of prosecution on this material issue.
17. The appellant's only defence was that Malutai (PW-1) was forcing him to accept the money against his will. We are not inclined to believe this defence version for more than one reason. Firstly, there is nothing in this defence version which deserves acceptance so as to acquit the appellant of the charges leveled against him. Secondly, the story that complainant was forcing the appellant to accept the money and that he was not accepting or accepted the money against his will is unbelievable in the light of the evidence adduced by the prosecution. It was not the case of appellant that money was given to him by Malutai (PW-1) against some previous lawful transaction between him and the complainant (PW-1) or that incident in question did not occur at all or that no application for mutation of Malutai's name was pending in the office and hence, the question of demanding any money from the complainant did not arise.
18. The High Court, therefore, rightly rejected the defence version in support of which, no evidence was adduced by the appellant. We concur with the reasoning of the High Court on this issue and, accordingly, uphold the same.
19. It is a settled principle in law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence, then conviction must follow under Section 7 ibid against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 ibid. (See- C.M. Sharma vs. State of Andhra Pradesh [(2010) 15 SCC 1] : [2010 ALL SCR 2808].
20. In the light of our own re-appraisal of the evidence and keeping in view the above-said principle of law in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification of Rs. 1000/- were proved on the basis of evidence adduced by the prosecution against the appellant and hence, the appellant was rightly convicted and sentenced for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Act by the High Court.
21. In the light of the foregoing discussion, we find no merit in this appeal. It fails and is, accordingly, dismissed. Since the accused is on bail, he be taken into custody forthwith to serve out the remainder of his sentence.