Narayana vs State Of Karnataka

NARAYANA .....Appellant

Versus

STATE OF KARNATAKA .....Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

1. PW-1 Sudarshan and PW-2 Bhargave, two brothers, were

running the Varsha Provision Store, Bijapur situated near the

Government Maternity Hospital since the year 1989 after

having obtained a license in the name of PW-2. The accused-

appellant Narayana who was working as a Commercial Tax

Inspector came to the shop in early December 1994 and

enquired from PW-1 and PW-2 as to why they were not paying

sales tax. PW-1 told him that as the sale in the shop was less

than Rupees one lakh, no sales tax was payable. The

appellant, however, told the two brothers that they should pay

a sum of Rs.2000/- on Diwali as was being paid by others

failing which he would issue a notice that the accounts

maintained by them were not accurate and that the shop

would be seized and they would be penalized. This threat was

repeated by the appellant on two different occasions

Crl. Appeal No.307/2003 2

thereafter. On the 4th January, 1994, the appellant came to

the shop at around 10:00 a.m. and again demanded the

payment. PW-1, however, refused to pay as the sales tax was

not leviable. The appellant, however, told him that if a sum of

Rs.1500/- was not paid within two or three days they would

suffer on that account.

2. As PW-1 was not prepared to make the payment, he

appeared on 5th January, 1994 before CW-16-M.Vishwanath,

Inspector in the Lokayuktha Office and made a complaint

Exhibit P-1 to him. CW-16 also asked PW-7 Head Constable

Khanderao, to secure the presence of PW-5 Basavant

Shankargouda Patil and PW-6 Mahadev Sidramappa

Dandoragi to act as witnesses. They were accordingly brought

to the office of the Inspector and the complainant narrated the

entire story to them as well. CW-16 also told PW-1 to produce

the bribe amount of Rs.1500/- and the currency notes

provided by him were smeared with Phenopthelene powder

and the details of the test to be conducted were also displayed

to the witnesses.

3. The raiding party left for Bijapur at 3:00 p.m. and

reached the Inspection Bungalow at about 5:00 p.m. PW-1

was sent to find out as to whether the appellant was available

in his office. He returned after a short while and told them

that the appellant was indeed in the office and that he would

Crl. Appeal No.307/2003 3

be visiting the shop in the evening. The party thereafter

returned to the Inspection Bungalow and then went on to the

shop belonging to the complainant. The appellant, however,

came to the shop at about around 8:00 p.m. and at that time

PW-2 was also present in the shop. The appellant stated that

he was in a hurry and that the payment should be made to

him immediately. PW-1 thereafter took out the currency notes

and handed them over to the appellant who put the same in

his hand bag. Immediately thereafter, PW-1 came out of the

shop and made a pre-determined signal on which CW-16 and

PW-7 and the other witnesses rushed in shop. CW-16,

thereafter took out the money from the hand bag of the

appellant and the Phenopthelene test was carried out and the

colour of the solution turned pink. The serial numbers of the

currency notes were also tallied with the memo prepared at

the time of the preparation of the trap.

4. On the completion of the investigation and after due

sanction from PW-8, the Commissioner of Commercial Taxes,

the appellant was brought to trial. The prosecution in support

of its case relied primarily on the evidence of PWs-1, 2 and 7

and also the circumstantial evidence in the case as PWs-5 and

6 turned hostile. The Trial Court on a consideration of the

evidence acquitted the appellant. The matter was thereafter

taken in appeal to the High Court. The High Court has, by the

Crl. Appeal No.307/2003 4

impugned judgment, set aside the conviction and sentenced

the appellant as under:

".......................the accused is sentenced to undergo

imprisonment for a period of 6 months and also to pay

a fine of Rs.2000/- and in default to suffer S.I. for one

month for the offence under Section 7 of the

Prevention of Corruption Act and he is also directed to

undergo imprisonment for a period of 1 year and also

to pay fine of Rs.5000/- and in default to suffer S.I.

for 3 months for offence under Section 13 (1)(d) r/w 12

(2) of the said Act and the accused is directed to suffer

the said sentence accordingly, The accused is also

directed appear before the trial court and to pay the

fine amount within one month from the date of this

judgment and the trial court shall commit him to the

prison to suffer imprisonment in accordance with this

judgment, failing which the trial court shall issue

warrant and secure the presence of the accused and

commit him to prison in accordance with this

judgment.

Both the sentences to run concurrently and the

accused is also entitled for the benefit of provisions of

Section 428 Cr.P.C."

5. For arriving at its conclusions, the court observed that

though interference in an appeal against acquittal should only

be for substantial and compelling reasons but at the same

time it was open to the appellate court to review the evidence

and to determine as to whether the judgment of the trial court

was justified on the evidence if the acquittal was completely

without basis, interference was called for.

Crl. Appeal No.307/2003 5 6. With this prefatory note, the High Court examined the

evidence. It was observed that the statements of PWs-1, 2 and

7 were without any blemish as to the recovery of the bribe

amount was proved beyond any doubt notwithstanding the

fact that CW-16, the Lokayuktha Inspector, had since died

and could not thus be examined as a witness. The court

observed that as there were several witnesses to the trap

merely because PWs-5 and 6 had not supported the evidence

and had been declared hostile, would not detract from the

evidence of the other witnesses. The court also observed that

the money had been handed over to the appellant who had put

it in his hands bag and as the phenopthelene test was

positive, this too was a corroborative evidence. The court

further opined that in the light of the presumption drawn

under Section 20 of the Prevention of Corruption Act, 1988,

the case against the appellant stood proved.

7. The present appeal has been filed impugning the

judgment of the High Court.

8. Mr. Bhat, the learned counsel for the appellant has

submitted that the trial court had taken a view in favour of the

appellant and interference by the appellate court in an

acquittal appeal was not warranted. It has also been

submitted that there were substantial discrepancies in the

evidence of PWs-1, 2 and 7 with respect to the actual trap as

Crl. Appeal No.307/2003 6

PWs-5 and 6, the only two independent witnesses had been

declared hostile, the evidence of interested witnesses alone

could not form the basis for conviction.

9. Mr. Hegde, the learned counsel for the State of Karnataka

has, however, supported the judgment of High Court and has

pointed out that there was absolutely no justification in the

acquittal recorded by the Trial Court and the said judgment

was completely contrary to the evidence. It has been argued

that the appellant had visited the premises belonging to PWs-1

and 2 on three or four occasions and there was absolutely no

reason as to why they would involve him in a false case as no

animosity of any kind had been suggested. He has finally

submitted in the light of the fact that the money had been

recovered from the hand bag of the appellant a presumption

under Section 20 of the Act was also to be raised against him.

10. We have considered the arguments advanced by the

learned counsel for the parties. We find in the facts of the

case that the decision of the High Court was fully justified.

The Trial Court, had on a complete misreading of the evidence,

rendered a judgment which could not be sustained. We have

also gone through the evidence of the PWs.1 and 2 who

categorically speak about the demand and these witnesses

alongwith PW-7 speak about the recovery of the tainted money

as well. It is also significant that the evidence had been

Crl. Appeal No.307/2003 7

recorded over a period of about four years and if there were

some minor discrepancies inter-se PWs-1, 2 and 7, it would

reasonably be explained on account of this long delay.

11. Mr. Bhat has, however, submitted that as CW-16, the

Investigating Officer had not been examined, this fact caused

prejudice to the appellant. This argument has absolutely no

merit as CW-16 had died before his statement could be

recorded.

12. For the reasons recorded above, we find no merit in this

appeal. It is accordingly dismissed.

...................................J.

(HARJIT SINGH BEDI)

...................................J.

(CHANDRAMAULI KR. PRASAD)

OCTOBER 05, 2010

NEW DELHI.