Karnataka High Court
Ambaji S/O Fakeerappa Mane vs The State on 26 June, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.200098 OF 2020
BETWEEN:
AMBAJI S/O FAKEERAPPA MANE
AGE: 38 YEARS, OCC: PUMP OPERATOR,
GRAM PANCHAYAT BELAMGI,
R/O: BELAMGI, TQ: ALAND,
DIST: KALABURAGI-585307.
...APPELLANT
(BY SRI. ASHOK MULAGE, ADVOCATE)
AND:
Digitally signed
by
KHAJAAMEEN THE STATE
L MALAGHAN THROUGH LOKAYUKTA POLICE STATION, KALABURAGI.
Location: HIGH
COURT OF THROUGH ADDL. SPP,
KARNATAKA HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
...RESPONDENT
(BY SRI. SUBHASH MALLAPUR, ADDL. SPP FOR LOKAYUKTA)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C. PRAYING TO ALLOW THE APPEAL AND SET-
ASIDE THE JUDGMENT AND ORDER PASSED BY THE
PRINCIPAL SESSIONS JUDGE AND SPECIAL JUDGE AT
KALABURAGI IN SPECIAL CASE NO.5/2014 (LOKAYUKTA)
DATED 26.08.2020 AND ACQUIT THE APPELLANT FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7 AND 13 (1) (D)
READ WITH SECTION 13 (2) OF PREVENTION OF
CORRUPTION ACT, 1988.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 374 (2) of Cr.P.C. is filed by he appellant - accused challenging the impugned judgment of conviction and order of sentence dated 26.08.2020 in Special Case No.5/2014 (Lokayukta) passed by the Principal Sessions Judge and Special Judge, at Kalaburagi convicting the appellant
- accused for the offences punishable under Sections 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act').
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02. The case of the prosecution is that PWs.3 and 6 are the beneficiaries under the Ashraya Scheme. For construction of a house, under the said Scheme, they received first installment. The second installment was due and the same was sanctioned and pending before the President of Gram Panchayat. Though, second installment was sanctioned, the Pancnayat Development Officer stated that, he has signed the cheques, the same is sent for signature of the President. At that time, the accused herein demanded gratification of Rs.4,000/- for clearing payment in respect of second installment. In view of the same, sum of Rs.2,000/- was paid by beneficiaries. PW.3 who was not desiring of paying the gratification amount, approached the Lokayukta Police. The Lokayuktha Police after registering the FIR, prepared the entrustment panchanama. The trap was conducted on 30.06.2011 and the accused was caught red-handed while demanding and accepting the bribe of Rs.2,000/- from the complainant. The Lokayukatha after completing the investigation, had laid the charge-sheet before the learned Session Judge.
03. The learned Sessions Judge, framed the charge for the aforesaid offences, and the same was read-over and explained to the appellant - accused, which he denied and pleaded not guilty and claimed to be tried.
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04. The prosecution to prove its case, examined PWs.1 to 10 and marked the documents Ex.P.1 to 51 (a). After the evidence of prosecution was concluded, the incriminating circumstances found in the evidence of prosecution, were put to the accused as contemplated under Section 331 (1) (b) of Cr.P.C. The accused denied the said incriminating circumstances as false. The accused marked the documents as per Ex.D.1 and D.2 and material objects as M.O.1 to 21.
05. The learned Sessions Judge, after appreciating the evidence on record held that the prosecution has established the guilt of the accused beyond all reasonable doubt and passed the impugned judgment of conviction and the order of sentence. Hence, this appeal.
06. The learned counsel for the appellant - accused submits that, in the absence of any evidence that the accused has demanded the gratification amount, the impugned judgment of conviction and order of sentence is not sustainable in law. He further submits that, the transcription of the recorded conversation is not supported by Section 65 (b) certificate and as such, it is no evidentiary value. Accordingly, prayed to allow the appeal.
07. On the other hand, the learned Addl. SPP for the respondent - Lokayuktha, submits that though PW.3 has turned hostile, however the evidence of PWs.1, 2, 9 and 10 clearly establishes that, the appellant - accused had demanded gratification. In lieu of the said demand, he was caught red- handed while accepting the gratification. The learned Sessions -5- NC: 2023:KHC-K:4584 CRL.A.No.200098 of 2020 Judge after considering the evidence, has rightly passed the impugned judgment of conviction and order of sentence and the same does not warrant any interference.
08. Considered the submissions made by the learned counsel for the parties and perused the Trial Court records.
09. PW.1 is the shadow witness; in her examination-in- chief she has stated that, she was working as Assistant Teacher in Private School; was summoned by the Lokyukatha Police and was furnished the copy of the complaint and plays tape recorder, in which the conversation of the appellant-accused and PW.3 was recorded. She has further deposed that, there was a conversation between the appellant-accused and PW.3 with regard to release of the cheque and thereafter, PW.3 handed-over a sum of Rs.2,000/- to the appellant-accused and the accused after receiving the same, counted the currency notes with both his hands. There is no specific allegation in the examination-in-chief of PW.1 with regard to the demand of gratification by the appellant from PW.3. Though the PW.1 has spoken about the receipt of the amount of Rs.2,000/-, however has not stated with regard to the payment of gratification by PW.3.
10. PW.2 is the witness to the trap panchanama and he has supported the case of the prosecution.
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11. PW.3 is the complainant and she was treated hostile and nothing was elicited in her cross-examination to prove the case of the prosecution.
12. PW.4 is the Panchayat Development Officer of the Gram Panchayat concerned and he has recognized the voice of the appellant-accused in the conversation recorded between the accused and PW.3.
13. PW.5 is the President of Gram Panchayat concerned and he has not supported the case of the prosecution. Nothing was elicited in his cross-examination to support the case of the prosecution.
14. PW.6 is the one of the beneficiary under the scheme and she has not supported the case of the prosecution. Nothing was elicited in her cross-examination to prove the case of the prosecution.
15. PW.7 is the competent authority, who had granted sanction to prosecute the appellant herein.
16. PW.8 is the member of the Gram Panchayat concerned and he is alleged to have accompanied PW.3 and PW.6 to the Lokayukta office.
17. PW.9 is the Investigating Officer, who had conducted major portion of the investigation and he has supported the case of the prosecution.
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18. PW.10 is the Investigating Officer, who completed the investigation and laid the charge sheet. He supported the case of the prosecution.
19. The pendency of the work and demand and acceptance of gratification is the sine qua non to constitute the offences punishable under Sections 7 and 13(2) R/w Section 13(1)(d) of the Prevention of Corruption Act.
20. The Hon'ble Supreme Court in the case of B. Jayaraj v. State of Andhra Pradesh, [(2014) 13 SCC 55] held as follows:
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 :
(2009) 2 SCC (Cri) 1] ."
21. The Hon'ble Supreme Court in the case of Neeraj Dutta v. State (NCT of Delhi), [(2023) 4 SCC 731] at paragraph 88 has held as follows:
"88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the -8- NC: 2023:KHC-K:4584 CRL.A.No.200098 of 2020 prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of -9- NC: 2023:KHC-K:4584 CRL.A.No.200098 of 2020 obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act."
22. The Hon'ble Supreme Court has observed that, to constitute the offence under Section 7 of the P.C. Act relating to public servant taking bribe, requires a demand of illegal gratification and the acceptance thereof and the proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the P.C. Act.
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23. In the instant case, PW.3 i.e., the De-facto complainant and PW.6, one of the beneficiary under the Ashraya scheme have turned hostile and nothing was elicited in their cross-examination to prove that the appellant-accused had demanded the gratification from them so as to release the cheque in their favour towards second installment. PW.1, who is the shadow witness, in his examination-in-chief has not categorically stated with regard to demand of gratification by the accused from PW.3 - De-facto complainant. PW.4 is the Panchayat Development Officer, who has stated in his examination-in-chief that he is familiar with the accused and has recognized the voice of the accused in the conversation recorded between the accused and PW.3.
24. The transcription of the voice conversation recorded between the accused and PW.3 is detailed in the trap panchanama at Ex.P41. Perusal of the same would indicate that the accused is alleged to have stated that if amount is paid, the cheque would be released and if the President says that the cheque has to be released without any amount, he would release the same.
25. PW.4-Panchayat Development Officer though has recognized the voice of the accused, however, the conversation recorded between the accused and PW.3 is not supported by the certificate issued under Section 65(B) of the Indian Evidence Act.
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26. The Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [(2020) 7 SCC 1] has held that, a certificate under Section 65B(4) is mandatory to admit electronic evidence unless the original electronic document is produced in evidence through the document/device owner's personal authentication as a witness. In the instant case, since the audio conversation recorded between the accused and PW.3 has not been supported by the certificate issued under Section 65(B) of the Indian Evidence Act, the same has no evidentiary value.
27. The appellant-accused in the voluntary statement has stated that he had received a sum of Rs.2,000/- from PW.3, which she had repaid towards the loan for construction of the house and the same is corroborated by PW.3 in her cross- examination. The material witnesses i.e., PW.1 and PW.3 have categorically stated that there was no demand of gratification by the accused from PW.3. On appreciating the evidence on record, and the accused having stated in his defense that he had received the amount of Rs.2,000/- towards repayment of loan by PW.3, I am of the view that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt.
28. In the absence of demand of gratification, the learned Sessions Judge has committed an error in passing the impugned judgment of conviction and order of sentence and the same is not sustainable in law. Accordingly, I pass the following:
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CRL.A.No.200098 of 2020
ORDER
i. Criminal Appeal is allowed.
ii. The impugned judgment of conviction and order of
sentence dated 26.08.2020 passed by the Principal Sessions Judge and Special Judge at Kalaburagi in Special Case No.05/2014 (Lokayukta), is hereby set-aside.
iii. The appellant-accused is hereby acquitted of the offences punishable under Sections 7 and 13(2) R/w Section 13(1)(d) of the Prevention of Corruption Act.
iv. The learned Sessions Judge to release the fine amount, if any, deposited by the appellant-accused.
v. The bail bond executed, if any, stands cancelled.
In view of disposal of the main appeal, pending interlocutory applications, if any, do not survive for consideration.
Sd/-
JUDGE KJJ/LG List No.: 1 Sl No.: 80