2014 Supreme(Kar) 683

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
A.V. CHANDRASHEKARA, J.
SRI: N A SURYANARAYANA @ SURI – APPELLANT
Versus
STATE BY INSPECTOR OF POLICE – RESPONDENT
CRL.A. No.1339/2003
Decided on: 28TH NOVEMBER, 2014

Headnote:PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Section 13(1)(d) - Offences under - Procedure to be adopted by the trap laying officer - (a) The normal procedure that would be adopted by the trap laying officer is to give an opportunity to the accused to give his statement about the receipt of bait money soon after washing his hands in sodium bicarbonate solution at the time or drawing recovery mahazar. Accused could be asked to give a statement in writing or if he is not in a position to write the statement, he can be asked to have his oral say which should be reduced into writing in the presence of the complainant, independent witnesses and thereafter it will be signed by all the concerned including the accused. In the present case, the Investigating Officer has not complied with this important procedure.

        (b) The normal procedure to be followed by the trap laying officer is to draw a rough sketch of the spot where trap will be laid at the earliest, that too, without any delay or at the time of recovery mahazar. That must be prepared immediately after the trap so as to show the exact position of the accused complainant and other witnessed. In the present case, PW3 has not prepared any rough sketch of the sense of trap. If he had prepared it, he would have definitely spoken to that effect in his evidence. Even the evidence of PW-2 complainant is silent about drawing of rough sketch at the spot.

        The procedure to be followed in laying trap by the trap laying officer is to take the complainant along with a shadow witness and entrustment mahazar witness to the spot and to tell the shadow witness to stand at a reasonable distance and watch the movement and overhear their conversation. Complainant would be directed to pay the amount only after being demanded by the accused. After getting signal from the complaint, the I.O. should rush to the spot with entrustment panch and 0ther Police Officials and catch hold of the hands of the accused and then ask the shadow witness as to what happened. On getting a complete account of what happened, he has to put questions to the complainant, and then he has to ask his officials to prepare sodium bicarbonate solution and dip the fingers of the accused in it.

       PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Section 13(1)(d) - Receipt of bribe by a public servant - Burden of proof - Held, The Court is expected to look into closely as to whether the accused had the official role to play in order to do an official favour. In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section 7 of the Act. Prosecution is expected to prove that the acceptance of bait money by the accused was preceded by demand. Hence heavy burden is on the prosecution to prove both demand as well a acceptance in a trap case. Acceptance of bribe amount or possession of tainted money by the public servant must be preceded by demand and evidence has to be appreciated properly giving the benefit to the accused. The explanation offered by the accused for possession of the alleged amount must be considered. Further, (a) Admittedly, the appellant was not the director, but was only a program executive. Even if this evidence were to be accepted as true, appellant was not the official authority to interrupt and stop telecast of the serial and to issue certificate so as to enable the producer to get the amount from sponsors. At the best, accused could have only recommended for issuing telecast certificate if all the conditions are complied with. If they are not complied, he can recommend for not issuing such certificate.

        (b) The accused-appellant was in charge of looking after administration work relating to sponsored programs and sponsored serials. Ex.P12 does not disclose that accused was competent to issue telecast certificates and copies of the notes of meeting of the director. The best person who could have spoken about this was the then director or subsequent director, but he has not been examined. This is a glaring lacuna in the case of the prosecution and this will have to be taken into consideration in the light of important admissions culled out from the mouth o PW-2.

        (c) The accused had no authority either to issue telecast certificate or a copy of the meeting notes of the director. Even if he was expected to issue telecast certificates, payment of telecast fee and minimum guarantee fee either by the complainant or the recognized agency-Multi Channel, was an absolute requirement. When PW-2 himself has specifically admitted is that Doordarshan was insisting him to pay minimum guarantee fee and telecast fee. The question of doing any official favour by the accused in order to demand bribe does not arise. On re-appreciation of the entire evidence, the Court is of the opinion that the prosecution has failed to make out a clear case that the accused, being a public servant working in Doordarshan Kendra, was in a capacity to do official favour to PW-2 in order to demand money as bribe.

       PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Section 19 - Grant of sanction - Proof of - Held, The sanction granted by the sanctioning authority could be proved either by producing the original sanction which itself contains facts constituting grounds, or by adducing evidence to show that the facts were placed before the sanctioning authority and the satisfaction arrived at by it. The sanctioning authority must apply is mind to the facts alleged and only on being satisfied that the sanction was necessary, the sanction order should be signed.

        Further, (a) The sanction order is a two-and-a-half page document and there is specific reference about the incident of bribe being accepted by the accused, and it is being witnessed by independent witnesses and the handing of bait money by the accused and receipt of it through illegal means by abusing his official position as a public servant.

        (b) Suffice to state that the sanction order depicts clear application of mind by the sanctioning authority on the basis or relevant material sent to him inclusive of statements of material witnesses and copies of final report. Thus, prosecution of the appellant is by valid sanction as contemplated under Section 19(1) of the P.C. Act.

       PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Section 20 - Presumption under - Mere proof of receipt of money by the accused in the absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. Presumption under Section 20 of the Act cannot be raised automatically as greater burden lies on the State to prove demand and acceptance beyond reasonable doubt. Before the accused is called upon to explain as to how the tainted money in question was found in his possession, the foundational facts must necessarily be established by the prosecution. It is made clear that even while invoking Section 20, the Court is required to consider the explanation offered by the accused, if any, that too, on the touchstone of preponderance of probabilities. Not insisting proof beyond reasonable doubt which is the initial burden cast on the prosecution.

        Further, In trap cases, the complainant will be an interested witness, in the sense that he would be interested in trapping the accused who is stated to have not done what ought to have been done legally, according to him, The evidence of the complainant needs corroboration in material aspects and this should be corroborated by the shadow witness who would have accompanied him at the time of alleged demand and receipt of bait money by the accused. While invoking Section 20, the Court is required to consider the explanation offered by the accused, if any, on the touchstone of preponderance of probabilities, and not on the touchstone of proof beyond reasonable doubt.