Karnataka High Court
State Of Karnataka vs Sri Shivalingamurthy on 18 January, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.772 OF 2020
CONNECTED WITH
CRIMINAL APPEAL NO.1617 OF 2018
IN CRIMINAL APPEAL NO.772 OF 2020
BETWEEN:
SHIVALINGAMURTHY
S/O LATE SIDDAIAH
AGED ABOUT 65 YEARS,
OCCUPATION: RETIRED JOINT DIRECTOR
OF EMPLOYMENT AND TRAINING
R/AT NO.102, D-BLOCK,
TERRACE APARTMENTS
BANASHANKARI 3RD STAGE
BANGALORE
PRESENTLY R/AT NO.30, 7TH MAIN,
JNANAJYOTHINAGAR
BANGALORE-560 056. ... APPELLANT
(BY SRI C.H. JADHAV, SENIOR COUNSEL FOR
SRI CHETHAN JADHAV, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY INSPECTOR OF POLICE
KARNATAKA LOKAYUKTHA POLICE
BENGALURU CITY WING,
BENGALURU
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560001 ... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPL. P.P.)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 454
OF CR.P.C. PRAYING TO DIRECT THE RESPONDENT-POLICE TO
RELEASE THE AMOUNT SEIZED FROM THE HOUSE OF THE
ACCUSED NO.2/APPELLANT IN MAHAZAR EX.P12 PRODUCED
BEFORE COURT IN PF.NO.9/2014 IN SPL.C.C.NO.179/2009
PENDING ON THE FILE OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE UNDER PREVENTION OF
CORRUPTION ACT, (CCH-78) BENGALURU AND ALLOW THIS
APPEAL.
IN CRIMINAL APPEAL NO.1617 OF 2018
BETWEEN:
STATE OF KARNATAKA
REPRESNETED BY POLICE INSPETOR
KARNATAKA LOKAYUKTHA POLICE STATION
BANGALORE CITY WING
BENGALURU - 560 001
... APPELLANT
(BY SRI VENKATESH S. ARBATTI, ADV.)
AND:
SRI SHIVALINGAMURTHY
AGED MAJOR
JOINT DIRECTOR OF EMPLOYMENT AND TRAINING
DEPARTMENT
DIVISIONAL OFFICE
GULBARGA
KARNATAKA.
RESIDING AT NO.102, D BLOCK
TERRACE APARTMENT,
BANASHANKARI III STAGE
BANGALORE - 560 070 ... RESPONDENT
(BY SRI C.H. JADHAV, SENIOR COUNSEL
FOR SRI CHETHAN JADHAV, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) READ WITH SECTION 27 OF PREVENTION OF
3
CORRUPTION ACT, CR.P.C. PRAYING TO GRANT LEAVE TO FILE
THE APPEAL AGAINST JUDGMENT AND ORDER OF ACQUITTAL
DATED 09.03.2018 IN SPL.C.(CORRUPTION).NO.179/2009
PASSED BY THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER PREVENTION
OF CORRUPTION ACT, BANGALORE (CCH-78).
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.12.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Crl.A.No.772/2020 is filed by the appellant-accused No.2 under Section 454 of Cr.P.C. for release of the cash seized by the Police during the investigation in respect of the P.F.No.9/2014 in Spl.C.C.No.179/2009 pending on the file of LXXVII Additional City Civil and Sessions Court and Special Court under Prevention of Corruption Act, Bengaluru (CCH-78).
2. Crl.A.No.1617/2018 is filed by the State represented by the Lokayuktha under Section 378(1) and (3) of Cr.P.C., read with Section 27 of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') for setting aside the judgment of acquittal passed by the Special Court, Bengaluru in Spl.C.C.No.179/2009 by acquitting the 4 respondent vide order dated 09.03.2018 for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the P.C. Act.
3. Heard the arguments of learned Special counsel for the State and learned Senior counsel appearing for the respondent as well as appellant in Crl.A.No.772/2020.
4. The case of the prosecution is that the Lokayuktha Police charge-sheeted against the accused- respondent for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the P.C. Act. It is alleged that the Dy.S.P.-A.N. Rajanna has said to be raided the office of accused Nos.1 and 2 situated at Prashanta complex, Subbaiah Circle, Bengaluru on the ground that accused Nos.1 and 2 have demanded and accepted illegal gratification of Rs.7,00,000/- from CWs.8 to 10 for doing official favour by misusing their official position that they assist the ITI institutions and the students for malpractices 5 in the examination by collecting the bribes. The police trapped the accused and seized Rs.10,000/- from the possession of appellant-accused No.2 and thereafter, they seized the same under the panchanama. Subsequently, the police also raided the house of accused No.2-the present respondent in Crl.P.No.1617/2018 at Banashankari and seized Rs.12,15,000/- cash from his house and he has not given any satisfactory explanation and account for the same. Hence, after the detailed enquiry made by the Lokayuktha, a report was sent for initiating the proceedings against the accused. Accordingly, a complaint came to be registered and charge-sheeted by the Lokayuktha police.
5. The accused appeared before the trial Court and pleaded not guilty. He claims to be tried and on behalf of the prosecution, the prosecution examined 7 witnesses and got marked 23 documents and after closing of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the 6 accused was one of the total denial, but not chosen to lead any evidence. After hearing the arguments, the trial Court found the accused not guilty and acquitted for the charges leveled against him vide judgment dated 09.03.2018. Being aggrieved with the judgment of acquittal, the Lokayuktha Police filed Crl.A.No.1617/2018.
6. Though the trial Court acquitted the accused but there was no order passed in respect of seizure of Rs.12,15,000/- from the house of the accused regarding return of the cash to the accused. Hence, the accused has filed an appeal under Section 454 of Cr.P.C. for release of the cash of Rs.12,15,000/- in his favour in the Crl.A.No.772/2020.
7. Heard the arguments of learned counsel of parties in both the cases and the points that arise for my consideration are:
"(i) Whether the trial Court committed any error in acquitting the accused for the offences punishable under Sections 7, 7 13(1)(d) read with Section 13(2) of P.C. Act which calls for interference by this Court ?
2. Whether the appellant is entitled for release of the amount of Rs.12,15,000/-
seized from the house of the accused by the investigation agency?
3. What order ?"
8. It is well settled by the Hon'ble Supreme Court that the Appellate Court is required to be very slow in interfering with the judgment of acquittal passed by the trial Court as the accused is having double presumption of innocence in his favour and also it is well settled by the Hon'ble Supreme Court that normally in the cases pertaining to Prevention of Corruption Act, the demand and acceptance of the bribe amount is sine qua non for establishing the case against the accused. By keeping the principles laid down by the Hon'ble Supreme Court in the catena of the decisions, the present case of the prosecution reveals as under:8
9. The prosecution case in nutshell is that accused No.1 who is not before this Court was the Director of the ITI Training Institute who is an IAS officer and the present accused is the Joint Director of the ITI Institute and they used to demand and accept money from the owners of the ITI Institute for uplifting their private institutions and allowing the students to do the malpractices in the examination held in the year 2003.
PWs.5 to 7 are said to be the employees of the ITI Training Institute. They have collected Rs.7,00,000/- as bribe from the private institutions, out of that, Rs.5,00,000/- has to be given to accused No.1 and Rs.2,00,000/- has to be given to accused No.2-the present accused. On the credible information, PW.2-Dy.S.P. of Lokayuktha after obtaining the search warrant from the Lokayuktha went to the office of accused No.1 at Subbaiah Circle, Bengaluru on 26.07.2003 and when he was observing, at that time, some officials came from the chamber of accused No.1 holding a bag, when the Dy.S.P. held those persons, he 9 found those persons having in possession of Rs.7,00,000/- and they have not given any satisfactory explanation. Therefore, those persons were taken back to the chamber of accused No.1 and seized Rs.7,00,000/- under the panchanama. Thereafter, a report also given to the Lokayuktha. The Lokayuktha prepared a report and sent to the Police to register FIR against accused persons. It is also alleged that one of the Police team went to the house of accused Nos.1 and 2 by obtaining the search warrant. They seized Rs.12,15,000/- from the house of accused No.2 under a panchanama-Ex.P.12. The Investigating Officer after obtaining the sanction from the Higher Authorities have filed the charge-sheet against accused No.2, but, no charge-sheet has been filed against accused No.1 and he was not sent for trial. It is submitted that accused No.1 is the IAS Officer and the Sanctioning Authority is Central Government, hence, a request has been sent for sanction but not received any sanction. 10
10. In order to prove the said contention, the prosecution examined PW.1 who is Sanctioning Authority who sanctioned to prosecute the case against accused No.2 as per Ex.P.1 and the trial Court has held that the sanction is valid and the same is not challenged by the accused.
11. However, in order to prove the demand and acceptance of bribe by accused No.2 or accused No.1, the prosecution examined PW.2, who is Dy.S.P.-complainant who raided the spot and seized the cash of Rs.7,00,000/- after obtaining the search warrant, then, he sent the report to the Lokayuktha and in turn, Lokayutha prepared a report under Section 12 of the Lokayuktha Act and directed the Lokayuktha Police to register the case. PW.2- Rajanna was examined as witness. He has adduced evidence stating that the information received by him by obtaining the search warrant and receipt of the information from the Lokayuktha and registered the FIR. He has identified the complaint prepared by him as per Ex.P.2. 11 Exs.P.3 and 4 are the request made before the Lokayuktha and he has obtained the search warrant as per Exs.P5 to 7 and thereafter, he seized the cash of Rs.7,00,000/- under the panchanama-Ex.P8. In order to corroborate the evidence of PW.2, the prosecution examined PW.5 Muddanna, who is a retired Joint Director, though he has stated that the amount of Rs.7,00,000/- has been seized from the chamber of accused No.1, but he has turned hostile and not supported the prosecution case. PW.6- Prem Kumar another employee of the training institute also turned hostile in respect of any demand and acceptance of the accused No.1 or accused No.2 in respect of seizing of Rs.7,00,000/-. PW.7-another official of the ITI institute, though he has stated that he was present when the amount of Rs.7,00,000/- has been seized, but, it has stated that the amount was brought by Lokayuktha Police and he also totally turned hostile and not supported the prosecution case.
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12. Though the prosecution examined PW.2, it is stated that some two persons have brought cash at 1.15 p.m. on 26.07.2003 saying that they collected money from the students in order to give the same to the Joint Director and one Prem Kumar-PW.6 is having Rs.4,00,000/- with him and Rs.3,00,000/- with another person Babu-PW.7. But those two persons were not made as accused and also not cited as witnesses in order to prove the contention of the prosecution.
13. In view of PWs.5 to 7 turned hostile, the prosecution is not able to prove that these persons have brought the amount of Rs.7,00,000/- by collecting the same from private ITI colleges as a bribe for allowing the candidates for doing malpractices in the ITI examinations. It is also stated that the accused persons received the bribe for improving or uplifting the private ITI institutions. The above said three witnesses have stated that the ITI examinations were conducted in the year 2003, the results were also declared. There is no malpractices in the said 13 examinations has been reported. The trial Court after considering the evidence of PWs.5 to 7 has held, the demand and acceptance of the bribe and also seizing the cash of Rs.7,00,000/- has not been proved beyond reasonable doubt. The entrustment of the work is also not proved by the prosecution. Except the evidence of PW.2, there is no corroborating evidence to hold the guilty against accused No.2. The trial Court has rightly considered the evidences of PWs.5 to 7 and held no guilty. The recent order passed by the trial Court by appreciating the evidence of the prosecution call for no interference.
14. In Crl.A.No.772/2020, as regards to the seizing of the cash of Rs.12,15,000/- by the Investigating Officer- Mahesh in the presence of PW.4, the said Mahesh has not been examined as witness. PW.4-B.K. Manjunath retired SDA has been examined by the prosecution where he has stated that the Police Officer went to the house of the present petitioner, he also accompanied him and a cash of Rs.5,00,000/- was found in the suitcase and some amount 14 also found, totally Rs.12,21,800/- has been seized and Rs.6,000/- has been returned to the accused and he has identified Ex.P.12 is the panchanama. But, the case of the prosecution is that Rs.12,15,000/- has been seized from the house of the accused by obtaining search warrant as per Ex.P.7., but the Lokayuktha Police neither investigated the matter in respect of seizing of Rs.12,15,000/- nor registered separate case for the offence punishable under Section 13(1)(e) of the P.C. Act and no separate charge sheet has been filed. However, except examining the PW.4, the prosecution has failed to examine Sri Mahesh- Investigating Officer who lead the team of raid for searching the house of the accused. Therefore, merely examining PW.4 without any registering separate case or filing any charge sheet, the amount of Rs.12,15,000/- cannot be treated as illegal gratification obtained by the appellant by demand and acceptance or amazing the wealth more than his known sources of income. The trial Court while passing the judgment though given findings 15 stating that the Investigating Officer has not examined and not collected any material by holding any investigation, but, has stated that no findings can be given on that point and also stated that the Court did not discuss about the same. However, there is no order passed by the trial Court either to confiscate the amount or to release the said amount to the appellant. Therefore, when the Investigating Officer though seized Rs.12,15,000/- from the house of the appellant-accused, but no investigation has been done and no charge-sheet has been filed on the said amount. Therefore, the said amount is liable to be released to the accused. If at all, the investigation agency was collected any material that he has amassed wealth more than the known sources of income, they could have taken any action against him. That apart, the employer of the Higher Officials of the said Department also not initiated any enquiry against him for having possession of Rs.12,15,000/- in the house. Therefore, the said amount deserves to be released to the appellant-accused. 16
15. Accordingly, the appeal filed by the State against the acquittal of respondent/accused in Crl.A.No.1617/2018 is hereby dismissed.
16. The appeal filed by the appellant-accused in Crl.A.No.772/2020 under Section 454 of Cr.P.C. is hereby allowed. The Trial Court is directed to release the amount seized by the Police under the panchanama-Ex.P.12 to the appellant after due identification after expiry of the appeal period.
Sd/-
JUDGE GBB