Karnataka High Court
State Of Karnataka vs L.Kumar Naik on 30 September, 2024
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CRL.A No. 856 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.856 OF 2014
BETWEEN:
STATE OF KARNATAKA
BY LOKAYUKATHA POLICE
BENGALURU CITY DIVISION
...APPELLANT
(BY SRI B. S. PRASAD, ADVOCATE)
AND:
L. KUMAR NAIK
S/O. LATE LACHANAIK
AGED 50 YEARS
OCCUPATION:AEE
ADDRESS:- NO.38, THUNGANAGARA
HEROHALLI EXTENSION
NORTH BENGALURU-1.
...RESPONDENT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KARIAPPA N. A., ADVOCATE)
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
Location: HIGH
COURT OF (3) CR.P.C PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER OF
KARNATAKA
ACQUITTAL DATED 23.7.2014 PASSED BY THE XXIII ADDITIONAL
CITY CIVIL JUDGE & SESSIONS JUDGE & SPECIAL JUDGE,
BENGALURU URBAN DISTRICT, BENGALURU, IN SPECIAL CASE
NO.20/2007, BY ALLOWING THIS CRIMINAL APPEAL AND
CONVICT AND SENTENCE THE ACCUSED-RESPONDENT FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) R/W SECTION
13(2) OF THE PREVENTION OF CORRUPTION ACT WITH WHICH HE
HAS BEEN CHARGED IN ACCORDANCE WITH LAW.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED ON 20.08.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.A No. 856 of 2014
CORAM: HON'BLE MR JUSTICE VENKATESH NAIK T
CAV JUDGMENT
The appellant/State of Karnataka by Lokayukta Police has preferred this appeal under Section 378(1) and (3) of the Code of Criminal Procedure Code, 1973 (for short 'Cr.P.C.') to set aside the judgment of acquittal dated 23-7-2014 passed by the XXIII Additional City Civil and Sessions Judge, Special Court, Bengaluru (for short 'Special Court'), in Special Case No.20 of 2007, wherein the accused has been acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C.Act'). The appellant prayed to convict the accused for the alleged charges.
2. For the sake of convenience, the parties are referred to as per their rankings before the Special Court. The appellant is the Complainant State and the respondent is the accused.
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3. The brief facts of the prosecution case are that during the year 2006, the accused was working as Assistant Executive Engineer attached to the Office of Bengaluru Water Supply and Sewerage Board, Bengaluru (in short, 'B.W.S.S.B.'). In the month of April, 2006, the accused was working in B.W.S.S.B., Sub-division 18th Cross, Malleswaram, Bengaluru. PW.1 was recognized by B.W.S.S.B. as registered contractor. When things stood thus, one N. Venkatachala entrusted the task of domestic water connection to his residential building at Sahakaranagara, Bengaluru. Thus, PW.1 had applied for domestic water connection with B.W.S.S.B. for and on behalf of N. Venkatachala. The file was pending before the accused. In this connection, the accused demanded PW.1 a sum of Rs.3,000/- as illegal gratification for his earlier work and a sum of Rs.4,500/- as illegal gratification towards the work of N. Venkatachala, in all, he demanded a sum of Rs.7,500/- from PW.1. Thus, PW.1 approached PW.5, the Lokayukta Inspector on 3-4-2006 and lodged the complaint vide Ex.P1.
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4. This led to registration of FIR and investigation. In this regard, PW.5 secured PW.2 and PW.3 panchas, drew entrustment mahazar/pre-trap mahazar in their presence vide Ex.P11. On the same day, PWs.1 to 3 and 5 went to the office of the accused, where PWs.1 and 2 entered the office and the accused demanded illegal gratification and in response to the same, PW.1 offered tainted money of Rs.7,500/- MO.9, the accused opened his table drawer, thus, PW.1 placed MO.9 inside the table drawer and conveyed signal to PW.5, who in turn entered the office and enquired about MO.9. As there was no satisfactory explanation by the accused, PW.5 seized MO.9 under Ex.P17-trap mahazar by following all procedure and seized relevant documents at the time of mahazar. PW.5 recorded statements of the witnesses, sent articles to FSL and after receipt of FSL report and service particulars of the accused, he laid charge sheet against the accused for the aforesaid offences.
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5. After filing of the charge-sheet, the Special Court took cognizance of the offences under Section 190(1)(b) of Cr.P.C. and after hearing the parties on both sides, framed the charges against the accused for the aforesaid offences and read over the same to the accused, the accused pleaded not guilty and claimed to be tried.
6. The prosecution in order to bring home the guilt of the accused examined in all five witnesses as PWs.1 to 5, got marked twenty-seven documents as Exs.P1 to P27 and ten material objects as MOs.1 to 10 and closed its case.
7. The Special Court after closure of the evidence recorded the statement of the accused under Section 313 of Cr.P.C. by explaining the incriminating material appearing in the prosecution evidence to the accused, he denied all the suggestions and the case of the accused was of total denial. For the defence, Exs.D1 and D2 were marked.
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8. The Special Court having heard both parties framed the following points for consideration:
''(i) Whether the prosecution has established that the accused being public servant while working as Assistant Executive Engineer in B.W.S.S.B. Malleswaram Office at Bangalore, on 03.04.2006 at 3.00 p.m. in his office i.e., office of the Executive Engineer, B.W.S.S.B., North-2 Sub-division, 18th Cross, Malleswaram, Bangalore demanded a sum of Rs.7,500/- (M.O.9) as illegal gratification from P.W.1 in order to provide domestic water connection to residential house No.2382, owned by N. Venkatachala situated at Sahakara
-Nagara, Bangalore and accepted the said amount as motive or reward to show official favour to P.W.1 and thereby the accused has committed the offence punishable under Section 7 of the Act?
(ii) Whether the prosecution has established that on the above date, place and time, the accused being a public servant abused his position and obtained a sum of Rs.7,500/- (M.O.9) from P.W.1 by demand to achieve pecuniary advantage against public interest and thus committed the act of criminal misconduct which is punishable under Section 13(2) of the Prevention of Corruption Act? '' -7- NC: 2024:KHC:41962 CRL.A No. 856 of 2014
9. Considering the evidence on record, the Special Court acquitted the accused of the aforesaid charges. Aggrieved by the judgment of acquittal passed by the Special Court, the appellant-State has preferred this appeal.
10. The Special Court records were called for and the same are placed before this Court.
11. Heard the arguments from both sides. Perused the material placed before this Court including the memorandum of appeal, impugned judgment and the Special Court records.
12. Sri B. S. Prasad, learned Special Counsel appearing for the appellant-Lokayukta, has contended that from the evidence of PWs.1 to 5, it has been clearly proved that on 3-4-2006, the accused demanded and accepted the bribe of Rs.7,500/- to provide domestic water connections to residential house owned by N. Venkatachala. Further, PWs.1 to 3 and 5 have clearly -8- NC: 2024:KHC:41962 CRL.A No. 856 of 2014 stated about drawing of the entrustment mahazar and seizure of MOs.1 to 10 in their presence by the Investigating Officer-PW.5 in the table drawer of the accused. The table drawer was in exclusive possession of the accused. The accused has to explain as to how the tainted amount came to his table drawer. The accused failed to offer proper explanation. The acceptance of illegal gratification whether preceded by a demand or not would be covered by Section 7 of the P.C. Act. The acceptance of illegal gratification is in pursuance of demand by the accused and thus, it falls under Section 13(1)(d) of the P.C. Act. The prosecution has been able to prove that the alleged act against the accused of demanding and accepting illegal gratification of Rs.7,500/- constitute the offences punishable under Sections 7 and 13(1)(d) of the P.C. Act. The Special Court based upon the oral and documentary evidence on record has committed an error in acquitting the accused and as such, there are sufficient grounds to interfere with the same. Thus, he prayed to allow the appeal.
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13. Per contra, Sri Hashmath Pasha, learned Senior Counsel appearing for respondent/accused vehemently contended that, the acquittal order passed by the Special Court is in accordance with law, procedure, facts and probabilities of the case. The Special Court has not committed any error in believing the uncorroborated testimonies of the prosecution witnesses. The Special Court has analyzed major discrepancies that appeared in the evidence of the prosecution witnesses. It is contended that PW.1-complainant was not attached to the office of the accused. PW.1 was never entrusted with work to provide domestic water connection to the residential house of N. Venkatachala. On the other hand, one P. Satish Kumar, a Government licensed contractor was entrusted with the said work. Further, no work was pending with the accused and hence, there was no occasion for him to demand the bribe. The evidence of PWs.1 and 5 as to the alleged acceptance of bribe amount- MO.9, is also doubtful. PW.1 managed the stage to show that the accused demanded a sum of Rs.7,500/- from him
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 and thus, approached the Lokayukta Police and filed a false complaint against him and this fact was disclosed by the accused in his explanation furnished to the Investigating Officer on the day of the alleged trap. This aspect has been brought on record and the Special Court has properly appreciated this aspect. It is contended that the seized amount was not recovered from the possession of the accused and on the other hand, it was seized from office table drawer of the accused. Further, there was rift between the accused and PW.1, as the accused had lodged a criminal case against PW.1, thus, in order to wreak revenge against the accused, PW.1 lodged a false complaint. It is contended that the accused had cleared the work and the file was forwarded to his higher authorities and hence, there was no pending work. Hence, there is no question of demand and acceptance by the accused. Mere recovery of amount in the absence of demand has no relevance in the eye of the law. Hence, on all these grounds, he prayed to confirm the judgment of acquittal passed by the Special Court.
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14. After hearing the learned counsel from both sides, the points that arise for Court's consideration in this appeal are:
i. Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant, working as Assistant Executive Engineer in B.W.S.S.B, on 3-4-2006 at 3.00 p.m. in his office i.e., office of the Executive Engineer, B.W.S.S.B., North-2 Sub-division, 18th Cross, Malleswaram, Bangalore demanded a sum of Rs.7,500/- (M.O.9) as illegal gratification from P.W.1 in order to provide domestic water connection to residential house No.2382, owned by N. Venkatachala situated at Sahakara Nagara, Bangalore and accepted the said amount as motive or reward to show official favour to P.W.1 and thereby the accused has committed the offence punishable under Section 7 of the Act?
(ii) Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant abused his position and obtained a sum of Rs.7,500/- (M.O.9) from P.W.1 by demand to achieve pecuniary advantage against public interest and thus committed the act of criminal misconduct which is punishable under
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CRL.A No. 856 of 2014
Section 13(2) of the Prevention of
Corruption Act?
iii. Whether the judgment of acquittal passed by the Special Court warrants any interference at the hands of this Court?
15. Before proceeding further in analyzing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analyzed.
(a) Our Hon'ble Apex Court, in its judgment in the case of CHANDRAPPA AND OTHERS v. STATE OF
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 KARNATAKA reported in (2007) 4 SUPREME COURT CASES 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
"42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
(b) In the case of SUDERSHAN KUMAR v. STATE OF HIMACHAL PRADESH reported in (2014) 15 SUPREME COURT CASES 666, while referring to CHANDRAPPA'S CASE (supra), the Hon'ble Apex Court at Paragraph 31 of its judgment was pleased to hold that, it is the cardinal
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of JAFARUDHEEN AND OTHERS v. STATE OF KERALA reported in (2022) 8 SUPREME COURT CASES 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
16. The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court in the case of RAVI SHARMA v. STATE (GOVERNMENT OF
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 NCT OF DELHI) AND ANOTHER reported in (2022) 8 SUPREME COURT CASES 536 and also in the case of ROOPWANTI v. STATE OF HARYANA AND OTHERS reported in 2023 SCC ONLINE SC 179.
17. Learned senior counsel appearing for the respondent/accused submitted that this is a case where there is no evidence of demand of illegal gratification by the accused. The proof of demand of gratification by a public servant is a sine qua non for the offences punishable under Sections 7 and 13(1)(d) of the PC Act.
18. Learned Special Counsel appearing for the prosecution submitted that PWs.1 to 3 and 5 have proved the demand. Moreover, on the basis of the circumstantial evidence, the demand and acceptance were proved. Once the demand and acceptance are established, there is a presumption that the acceptance of gratification proves the existence of motive or reward.
19. In the instant case, the prosecution has made allegation that the accused, being a public servant,
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 working as Assistant Executive Engineer in B.W.S.S.B., on 3-4-2006, at 3:00 p.m. in his office demanded a sum of Rs.7,500/-(MO.9) from PW.1 as illegal gratification in order to provide domestic water connection to the residential house owned by N. Venkatachala and accepted the said amount as motive or reward to show official favour to PW.1.
20. In order to prove the demand and acceptance, the prosecution examined:
a. PW.1, V. Prakash, in his evidence has stated that, he has been working as a contractor in the BWSSB for the past 20 years. In the year 2006, he applied for water connection of half inch with the BWSSB, but the application was filed on 03.04.2006 and it was not attended for 10 days. Thus, he approached Assistant Executive Engineer-accused. He told him that he should settle the old due amount of Rs.10,000/- and Rs.4,500/-
for the instant case, totally Rs.7,500/- by way of bribe.
Thus, he demanded a sum of Rs.7,500/- on 03.04.2006.
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 On the same day, at 11.15 a.m., he went to Lokayukta office and met Lokayukta Police Inspector and informed about the demand made by the accused, accordingly, he lodged the complaint as per Ex.P1. Immediately, the Lokayukta police secured two witnesses PW.2-Ashok B.R. and PW.3-K. Ravi Kumar. The police inspector asked the accused to produce an amount of Rs.7,500/-, accordingly, PW5 the Investigating Officer prepared entrustment mahazar/pre-trap mahazar vide Ex.P11.
PW1 further stated that, he was instructed to pay money to the accused only on demand and if the amount demanded was received by the accused, he was instructed to flash signal by wiping his face with a kerchief and PW.2 was asked to observe the activities and to report.
On the same day, at 2.00 p.m., all of them went to the office of accused, stopped near Kendriya Vidyalaya at a distance of 300 feet, PWs.1 to 3 went to the office of the accused. It was in the 1st floor. He asked the accused about his work. He asked him whether he had brought the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 cash to which PW.1 stated that he has brought the cash and thus, he opened the table drawer and put the amount of Rs.7,500/- in the table drawer and thereafter, came out of the cabin and stood near the window and flashed the signal to the trap team by wiping his face. Immediately, Lokayukta police came to the spot and asked him and he told about the matter. Thereafter, they disclosed their identities. Lokayukta police enquired PW.2 Ashok about the money to which he told that accused demanded money and opened the table drawer and thus, PW1 had put the amount and after opening the drawer, Ravi Kumar-witness was asked to takeout the cash. In the table drawer, there was wedding invitation and the amount was kept on that invitation card and punching machine was kept on the amount. Ravi Kumar took out the cash and it was verified by him and Ashok and as per Ex.P2 (currency details sheet), it tallied. The cash was put in a cover and sealed. The hands of the accused were washed in sodium carbonate solution separately in two bowls; there was no change of colour. They were seized and sealed in bottles.
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 The white paper on which the currency notes were found was wiped with cotton and thereafter the cotton was dipped in sodium carbonate solution and it turned into pink colour and the cotton was seized separately. Sketch of the place was prepared as per Ex.P12. Photographs were obtained as per Exs.P13 to P15. The Lokayukta police also seized the copies of the papers connecting to the case of the complainant and in the office of the accused vide Ex.P16. He has further stated that his hand was also washed in the freshly prepared sodium carbonate solution and it turned into pink colour and that was seized separately in the bottles. Accused gave his explanation and this witness denied the version of the accused.
Similarly, shadow witness also denied the version of the accused. The entire proceedings were prepared in the form of trap mahazar as per Ex.P17.
He further stated that a E-metal seal was used for purpose of sealing and it was bearing English capital letter "E" and that was handed over to witness, Ravi Kumar,
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 under acknowledgement after obtaining specimen seal and with a direction to produce it whenever directed to do so.
He has further stated that on the next day, he went to Lokayukta office and his statement was recorded. Himself and shadow witness went to the office of the accused on the date of trap. When hands of the accused were washed in his office, there was no change of colour. The solutions were seized in bottles separately. The sample solution taken out in the office of the accused is marked as MO.3.
The right hand wash of the accused is also marked as per MO.4. The left hand wash of the accused is as per MO.5.
There was a paper and punching machine beneath which the cash was kept. The Lokayukta Police Inspector instructed for wiping the paper and punching machine with cotton. Thereafter the cotton was dipped in the sodium carbonate solution and the solution changed the colour into pink. The coloured solution was seized and sealed in a bottle as per MO.6. The wedding card and paper were also seized and the invitation card (with cover) is marked as Ex.P18. The cash recovered from the table drawer was put
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 in a cover and seized. The accused was asked to give his explanation. The accused stated that he does not know.
When the police inspector asked this witness about the explanation, he had put the amount in the table drawer as he was directed to do so by the accused, his hand was also washed in the solution in the office of the accused and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle as per MO.7.
PW.1 was cross examined and in the cross examination he admitted that, he has not produced any documents or agreement between him and Venkatachala to the Lokayukta police and there was no written agreement between him and Venkatachala regarding water connection.
b. PW.2-Ashok B. R., Second Division Assistant, Mines and Geology Department, in his evidence, has stated that for the past 10 years, he has been working in Mines and Geology Department. On 03.04.2006, his Superior Officers told him to attend Lokayukta office for
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 some proceedings. Accordingly, at about 11.00 a.m., or 11.30 a.m., he went to Lokayukta office. By that time, another witness by name Ravi Kumar from the Department of Industries and Commerce was also present.
They went to the office of Lokayukta police inspector, at that time, PW1-complainant-V. Prakash was also present. He was introduced to them. Copy of the complaint was given to them. They ascertained the veracity of the complaint from complainant-Prakash. Then, the police inspector asked Prakash to produce the currency amount. He produced currency notes of denominations Rs.500 x 5 and Rs.1000 x 5, totalling to Rs.7,500/-. The currency notes were verified and numbers were noted down as per Ex.P2-Currency details sheet. Thereafter, phenolphthalein powder was smeared on the currency notes. Another witness Ravi Kumar was asked to verify. He did so and he was asked to keep the amount on the left side shirt pocket of the complainant. Thereafter, a solution was prepared; sample was taken and seized in a bottle as per MO.1. In the remaining solution, Ravi Kumar
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 was asked to wash his hands and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle with the seal bearing English letter "E". They were instructed to maintain confidentiality. Photographs of the proceedings were taken. Prakash was instructed to speak about the pending matter and to pay the amount to the accused only if he demands and thereafter, to flash signal by wiping the face with kerchief. He was instructed to observe the activities and to report. A mahazar of the proceedings were drawn as per Ex.P11. Thereafter, all of them went in Government vehicle towards the office of the accused at Malleswaram, the vehicle was parked at a distance of about 300 feet from the office. He and the complainant got down. They were reminded of the instructions which were given earlier. It was about 2.30 to 2.45 р.m., he and complainant went inside the office and the complainant saluted the accused. The accused said the work was over and asked the complainant to pay the bribe. Complainant took out the money from his pocket and offered. He was directed by
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 the accused to keep the money in the table drawer. Complainant kept the amount inside the table drawer and flashed the signal by wiping his face with kerchief. Thereafter, the police inspector came and asked the complainant. He showed the accused and told the matter. At that time, a solution was prepared and sample was taken and seized in a bottle as per MO.3 and in the remaining solution, right hand of the accused was washed in a separate portion and left hand also was washed. There was no change of colour in the solution. The right hand wash is as per MO.4 and the left-hand wash is as per MO.5. Then the Police Inspector asked about the cash. Accused showed the table drawer and he recovered the money from the table drawer and it was tallied with the cash that was subjected to entrustment mahazar. The cash was seized and was kept in the cover. Then with the help of cotton, punching machine and an invitation card under which the cash was kept was wiped and the said invitation card is as per Ex.P18. Thereafter, the cotton was dipped in the solution and the solution turned into pink
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 colour and the coloured solution was seized and sealed in a bottle as per MO.6. The hand of the complainant was also washed in the solution and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle as per MO.7. Lokayukta police asked for the version of the complainant and his version as well. Thereafter, the accused was asked to give his explanation. He explained that the complaint was false and it was given because of the vengeance as the accused had filed a criminal complaint against the complainant. He denied the substance of the explanation of the accused. The case papers were collected along with attendance extract, copies were taken, they were attested and they were collected by the Lokayukta police. The sketch of the place of incident was prepared, photographs were taken. All seized articles were sealed with the help of metal seal and metal seal was handed over to Ravi Kumar with a direction to produce it whenever he is directed to do so. Mahazar was drawn between 3.15 and 5.30 p.m. The trap mahazar is as per Ex.P17. The explanation of the accused is as per
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 Ex.P19. The photographs are as per Exs.P13 to P15. The sketch is as per Ex.P12. PW.2 was cross examined and in the cross examination, he admits that from the place where he was standing in the office, the chambers of the accused was not visible.
c. PW.3 K. Ravi Kumar, Superintendent, Industries and Commerce Department, in his evidence, has stated that he is working in the said Department for the past 17 years. He has stated in line with PW.2. Further, he has stated that he brought the sealed articles with capital English letter "E" metal seal-MO.8.
d. PW.4 N.C. Muniyappa, the Chairman of BWSSB Bengaluru, in his evidence, has stated that during 2006, he received a letter dated 25.08.2006 from ADGP, Karnataka Lokayukta, Bangalore seeking sanction to prosecute accused L. Kumar Nayak, Assistant Executive Engineer Technical Branch of BWSSB for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Along
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 with the letter, he has received the copies of complaint, FIR, mahazar, sketch, statements and other prosecution papers. After going through the papers, he came to know that his Board has got powers to accord sanction to prosecute the accused for the said offences, who at that time, was a Group B officer. The details of the concerned Officer along with all the documents were placed before the Board seeking sanction to prosecute the accused. He has stated that the Board, in its meeting dated 06.11.2006 accorded sanction under section 19(1)(c) of the Prevention of Corruption Act to prosecute the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. As per the decision of the Board, he being the Chairman, BWSSB, issued Sanction order as per Ex.P22 on 22.11.2006 according sanction to prosecute the accused for the above said offences. Further, he received a letter from the ADGP, Karnataka Lokayukta, Bengaluru on 30.11.2006 to modify sentences Nos.1 to 3 at page No.3 in para No.2 of the order dated 22.11.2006 and produced the same before the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 Court and the same is marked as Ex.P23. It was thereafter he modified the order and issued the present sanction.
e. PW.5-B. S. Rama Mohan, Police Inspector, Karnataka Lokayukta, Bengaluru Urban. In his evidence, he has stated that, on 03.04.2006, at 12.15 p.m., In-charge Deputy Superintendent of Police Sri Shekar entrusted the complaint Ex.P1 to him. He registered the case on the basis of the complaint in crime No.13/2006 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and dispatched the FIR as per Ex.P25 to the trial Court. He sent requisition to the Director of Mines and Geology and Director of Industries and Commerce to act as witnesses. Accordingly, two witnesses came, one is PW.2 and another is PW.3. He introduced the complainant to the witnesses and gave the copy of the complaint to read. Thereafter, the witnesses ascertained the veracity of the complaint from the complainant. He asked the complainant to produce the amount. The complainant produced the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 amount of Rs.7500/- in denomination of Rs.1000 x 5 and Rs 500 x 5. Thereafter, the serial numbers of the currency notes were noted down in a paper as per Ex.P2 (currency details sheet). He has stated that under his instructions, phenolphthalein powder was smeared on both the sides of the currency notes, he asked PW.3 to verify the currency notes. Thereafter, he asked PW.3 to keep the currency notes in the shirt pocket of the complainant after ensuring that no other articles were present in the pocket. He asked Constable Yogesh to prepare sodium carbonate solution and the sample was seized and sealed in a bottle as per MO.1. In the remaining solution, the hands of the witness were washed and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle as per MO.2. Further, he gave instructions to the complainant to pay the money to the accused only in case of demand and further instructed the complainant that after demand and receipt of payment of bribe amount to wipe the face with kerchief. He has further stated that he also instructed PW.2 Ashok to observe the activities that would take place
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 between the complainant and the accused; photographs were taken as per Exs.P3 to P10-Pre trap mahazar-Ex.P11 was conducted between 1.15 p.m. to 2.00 p.m. At 2.30 p.m., all of them left Lokayukta Office and went towards the Office of the accused at BWSSB, Malleswaram. The vehicle was parked at a distance of 200 meters from the office of the accused. Complainant and witnesses got down and he reminded the instructions to them and when they went inside, it was 2.45 p.m. The complainant flashed signal by wiping his face with a kerchief, they went to the first floor, the complainant showed the accused to them and told that he was the person who received the bribe from him. Thereafter, he disclosed his identity and ascertained the details. He asked his constable Shankarappa to prepare sodium carbonate solution in two bowls and sample was taken and sealed in a bottle as per MO.3, in the remaining portion, two parts were made and the right hand of the accused was washed in the solution and the solution did not turn to any colour and the solution was seized and sealed in a bottle as per MO.4, further, in
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 the remaining solution, left hand of the accused was washed in the solution and the solution did not change to any colour and the solution was seized and sealed in a bottle as per MO.5. He asked the accused where the money was, he pulled the right side table drawer, and the amount was kept beneath the punching machine. The witnesses were asked to verify the currency notes. The serial numbers of the currency notes tallied with serial numbers subjected to entrustment mahazar. The currency notes were removed from the table drawer by the witnesses. Thereafter, the currency notes were put in a cover and sealed. The currency notes are already marked as MO.9 and the cover is already marked as MO.10. Thereafter, he instructed his constable to swipe the relevant portion of the punching machine, invitation card and white paper. Thereafter, the cotton that was used for swiping was dipped in a freshly prepared sodium carbonate solution and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle as per MO.6. Further, he stated that in a freshly prepared
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 sodium carbonate solution, he asked the complainant to wash his right hand and the solution turned into pink colour and the coloured solution was seized and sealed in a bottle as per MO.7. A metal seal was used for sealing the seized articles and it is already marked as MO.8 and it was bearing English letter "E" after taking the specimen seal letter as per Ex.P21. After taking the endorsement, the seal was handed over to PW.2. He collected the copies of the documents connecting the case and got them seized including the extract of the attendance register as per Ex.P16. The accused gave explanation in writing as per Ex.P19 and when he showed explanation to the complainant and shadow witnesses, they denied the genuineness of the explanation. Photographs were taken at each stage as per Exs.P13 to P15. He also prepared a rough sketch of the place as per Ex.P12. He completed the arrest formalities of the accused and subjected the seized articles to PF. On 04.04.2006, he recorded the statements of PW.1, PW.2, PW.3, CW5 and CW7. On 05.04.2006, he sent the seized articles for chemical examination to FSL.
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 On 17.04.2006, he recorded the statement of one Gowramma. On 08.06.2006, he collected the service particulars-Ex.P26 of the accused. On 21.07.2006, he received the chemical examination report-Ex.P27. He further submitted that he prepared the final report and sent the final report on 18.08.2006 to SP for seeking PSO. The PSO was obtained on 26.12.2006. On the same day, he recorded the statements of CW10 and CW11. Thereafter, after scrutiny, he submitted the charge sheet to the Jurisdictional Court.
21. Before I analyze the evidence, it is relevant to note that the Court is dealing with Sections 7 and 13 of the PC Act as they stood prior to the amendment made by Act 16 of 2018 with effect from 26th July 2018. We are referring to Sections 7 and 13 as they stood on the date of commission of the offence. Section 7, as existed at the relevant time, reads thus:
7. Offence relating to public servant being bribed. Any public servant who, -
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 "7. Public servant taking gratification other than legal remuneration in respect of an official act.--
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Explanations.
(a) "Expecting to be a public servant" If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b)"Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration" The words "legal remuneration" is not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
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(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
9. Section 13(1)(d), as existed at the relevant time, reads thus:
"13.Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,
(a) ....................................
(b) ....................................
(c) ....................................
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
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(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) ........................................"
22. The demand for gratification and acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.
23. The Hon'ble Apex Court in NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI) reported in 2023 LIVELAW (SC) 211 at paragraph 74 held as under:
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the 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.
(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.
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(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.
(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 obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 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 Section 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
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 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 Section 13(1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
(Emphasis added) From the perusal of the aforesaid decision, it clearly transpires that in the absence of evidence of the complainant, direct or primary evidence of demand of illegal gratification, it is not permissible to draw an inference of guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
24. Even the issue of presumption under Section 20 of the PC Act has been answered by the Hon'ble Apex Court (Constitution Bench) by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 Constitution Bench of Hon'ble Supreme Court has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N. VIJAYAKUMAR v. STATE OF TAMIL NADU reported in AIR 2021 SC 766, which follows the view taken in the cases of B. JAYARAJ v. STATE OF ANDHRA PRADESH reported in (2014) 13 SCC 55. In paragraph 9 of the decision in the case of B. Jayaraj, the Hon'ble Apex Court has dealt with presumption under Section 20 of the PC Act, wherein it is held as under:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
(Emphasis added)
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25. The presumption under Section 20 of P.C. Act can be invoked only when two basic facts required to be proved under Section 7 of P.C. Act, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated under Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.
26. In the case of N. Vijayakumar referred supra, the Hon'ble Supreme court dealt with the issue of presumption under Section 20 and the degree of proof
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. Thus, the demand for gratification and its acceptance must be proved beyond reasonable doubt.
27. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 of P.C. Act provided the basic allegations of demand and acceptance are proved.
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014
28. In this case, the Court is also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Hon'ble Apex Court, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Hon'ble Apex Court has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 can always be proved by other evidence such as circumstantial evidence.
29. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench of the Hon'ble Apex Court does not dilute this elementary requirement of proof beyond a reasonable doubt. The Hon'ble Apex Court was dealing with the issue of the modes by which the demand can be proved. The Hon'ble Apex Court has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 accused. Therefore, in this case, let me examine whether there is any direct evidence of demand. If the Court comes to a conclusion that there was no direct evidence of demand, then the Court has to consider whether there was any circumstantial evidence to prove the demand.
30. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, the Court proceeded to analyze the evidence placed by the prosecution in this matter.
31. It is admitted fact that the accused was a public servant. So far as sanction is concerned, the prosecution relied upon the oral evidence of PW.4, M.C. Muniyappa, the then Chairman of BWSSB, Bengaluru, who has stated that, as per the request of Karnataka Lokayukta, Bengaluru, he perused the material submitted before him and issued sanction letter as per Ex.P22 against the accused in order to prosecute the accused for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of P.C. Act, 1988. The accused has not disputed the contents of
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 Ex.P22 sanction letter. Therefore, the sanction letter Ex.P22 issued by the competent authority is in accordance with law.
32. PW.1-V. Prakash, complainant, is concerned, with reference to contents of Ex.P1-complaint as to demand and acceptance, it appears that about 10 days prior to 03.04.2006, he approached the accused and requested him to recommend his file to the Executive Engineer. At that juncture, the accused had demanded illegal gratification of Rs.3,000/- for earlier work order and Rs.4,500/- in order to provide domestic water connection to the house of one N. Venkatachala. But, the oral evidence of PW.1 is not in full conformity with the contents of Ex.P1 complaint. In the evidence, he has stated that, in the year 2006, he had applied for water connection with BWSSB and he had submitted application on 03.04.2006. Since, the same was not attended for 10 days, he approached the accused. But, in the complaint, he has stated that he submitted the application on 01.04.2006,
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 therefore, this portion of his evidence needs to be appreciated along with contents of Ex.P1, which unerringly discloses that the complaint was filed on 01.04.2006 and when such being the case, there was no need for him to wait for 10 days. From the perusal of Ex.P16, the case paper, it clearly establishes that the Executive Engineer had signed the letter addressed to N. Venkatachala and instructed him to remit a sum of Rs.2,01,775/- by way of demand draft within 15 days. Ex.P16 bears signatures of 3 staffs, who affixed their signatures on 03.04.2006. As per Ex.P16, it appears that the accused being the Assistant Executive Engineer recommended for providing domestic water connection vide his letter dated 21.03.2006. It shows that as on the date of alleged trap, no work was pending with the accused and the particular work assigned to the accused was completed and the same was communicated to the owner of the house. Further, in the evidence, PW.1 has stated that when he approached the accused, he was informed by the accused that he should settle the old due of Rs.10,000/- and also Rs.4,500/- for
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 the present file, thus, a sum of Rs.7,500/- has to be paid by way of bribe. Perhaps this portion of evidence of PW.1 is not in full conformity with the contents of Ex.P1. The amount of Rs.10,000/- as stated by PW.1 cannot be termed as either stray word or spelled out by mistake or oversight and PW.1 has not offered any clarification in this regard. More importantly, on 21.03.2006, one N. Venkatachala had filed application through one Satish Kumar, a Government licensed Contractor seeking water connection and in that connection, a notice was sent to Venkatachala on 01.04.2006 by BWSSB, as we can seen in Ex.P16. Therefore, the application for water connection was filed on 01.04.2006 and not on 03.04.2006 as deposed by PW.1. Further, subsequent to approval by the Executive Engineer, notices were sent, but, in the evidence, PW.1 has stated that he does not remember that, on 28.03.2006, the file was approved by the Executive Engineer and the fact remains that Ex.P16 clearly shows that it was approved on 28.03.2006. As per the contention of PW.1, on 03.04.2006, he decided to
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 lodge the complaint and admits that, since the accused was causing delay to send the file to the Executive Engineer, he lodged the complaint with Lokayukta Police as per Ex.P1. Therefore, this version of PW.1 that accused was causing delay to send the file to the Executive Engineer is contrary to the contents of Ex.P16 and the same cannot be accepted. Furthermore, one N. Venkatachala, the owner of the house entrusted the task of providing water connection to one Satish Kumar and there was no written agreement between PW.1 and N. Venkatachala. The contention of PW.1 with regard to alleged demand in Ex.P1 is not corroborated by the oral testimony of PW.5, the Investigating Officer, who has clearly stated that, nothing was mentioned in Ex.P1 that there was demand by the accused on 03.04.2006. PW.5 also admits that he has not done any investigation as to the previous work entrusted or carried out by the accused, in respect of allegation leveled against the accused. The Investigating Officer further admitted that notice was issued to N. Venkatachala for payment of the pro-rata
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 charges and on 28.03.2006; the Executive Engineer approved the connection of water line. This admission of PW.5 clearly establishes that, the accused never caused any delay in recommending a file to the Executive Engineer. Under such circumstances, the defence put forth by the accused requires to be appreciated. Soon after conducting alleged trap, the accused offered his explanation in writing as per Ex.P19, wherein the accused denied the alleged trap. As per Ex.P19, the accused came to know about MO.9-cash of Rs.7,500/- in his table drawer, only after arrival of PW.5-Lokayukta Inspector. In Ex.P19, the accused has stated that he has not demanded illegal gratification and he further stated that about 4 or 5 years ago, there was exchange of words between him and the accused in connection with departmental work and in this regard, PW.1 had threatened him with dire consequences and as such, he lodged the complaint with Malleshwaram Police against PW.1 and in that matter, PW.1 gave an undertaking and the complaint was closed. Hence, in that regard, in order to wreak vengeance, PW.1
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 falsely implicated the accused in this case. This defence statement has been reiterated by the accused while recording his examination under Section 313 Cr.P.C. But, the defence put forth by the accused with regard to complaint lodged by him against PW.1, he has stated that, he does not know whether police complaint was lodged against him or not. But, PW.5 during cross examination clearly admitted that PW.1 had undertaken before the Malleswaram Police that in future he would not commit any acts of criminal intimidation against the accused and with that understanding, the complaint of the accused came to be closed. Therefore, on the strength of admission made by PW.1 during cross examination coupled with Ex.D2-the defence of the accused the evidence is worthy of acceptance. Further, one N. Venkatachala never entrusted any work to PW.1 to provide water connection to his house. In this case, neither Sathish Kumar nor N. Venkatachala are cited as witnesses and examined before trial Court. Thus, PW.1 complainant was not an authorized person to clear the file in question and in this regard,
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 nothing has been placed on record to show that he submitted an application for water connection. It is also not forthcoming on record as to how PW.1 was connected to the Office of BWSSB, when Satish Kumar was a licensed Government Contractor. Further, no investigation was conducted as to, PW.1 Prakash was authorized by Satish Kumar or by N. Venkatachala. Further, on the date of alleged trap, no work was pending and work was over and therefore, the question of making demand of bribe by the accused would not arise. Ex.D2 corroborates with the contents of Ex.P19. In fact, the contents of Ex.P19- defence statement was spontaneously written by the accused and the accused took only one stand. From the perusal of Ex.D1, it appears that, there was no demand on the part of the accused. As per Ex.P17, when PW.1 enquired about his work, the accused replied that his work is already completed. The contents of Ex.P17 are marked through PW.2.
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33. The oral evidence of PW.1 that subsequent to lodging of Ex.P1, PWs.2 and 3 were secured by PW.5, where, he produced MO.9 cash, same was verified by PW.2 and thereafter, phenopthelen powder was smeared on those notes and kept in the shirt pocket of PW.3, is not under serious challenge. The oral evidence of PWs.2 and 3 as to the fact that they were secured by PW.5, on 03.04.2006, where PW.1 was present is also not in dispute. The entrustment Panchanama drawn in the office of PW.5 is also not seriously disputed by the accused.
34. But, the accused has seriously disputed the alleged trap. The oral evidence of PW.1 is that on 03.04.2006 after 2:00 p.m., he along with PWs.2 and 3 went to the Office of the accused, where the accused asked him whether he has brought the cash or not, for which, he replied in the affirmative and in response to the same, the accused opened the table drawer and as such PW.1 put MO.9 cash, whereas, PW.2-shadow witness has stated that he along with PW.1 entered the office of
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 accused, where the accused expressed that the work is complete and the accused demanded money. When PW.1 offered MO.9, it was on the direction of the accused. But, the evidence of PW.3 is that after reaching the office of accused, PWs.1 and 2 went to the office of accused and later, PW.1 offered signal by wiping his face with kerchief, he along with PW.5 and the staff of PW.5 entered the Office of the accused. Therefore, when the evidence of PWs.1 and 3 is put together, there are glaring discrepancies in their evidence and improvement made by PW.1, throws a considerable doubt touching the alleged demand and acceptance. The evidence of shadow witness. PW.2 with regard to alleged demand though corroborates the oral testimony of PW.1, but, said corroboration will not lend any assurance to the case of prosecution, for the simple reason that portion of his evidence has been negatived in the cross examination and he has not stated so before the Investigating Officer. Further, a suggestion was made to PW.2 that he has not stated before PW.5 that the accused communicated that the work has already
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 completed and he insisted PW.1 for money, and in response to the same, PW.1 offered MO.9 and as per the direction of the accused, MO.9 money was kept by PW.1 in the table drawer, same has been denied by PW.2. However, PW.5 during cross examination admits that, PW.2 has not stated so during trap mahazar vide Ex.P17. Therefore, the oral evidence of shadow witness particularly with regard to demand and acceptance of MO.9 by the accused cannot be considered as corroborative evidence. PW.2 in his evidence has stated that at the time of trap mahazar, hand wash of the accused as well as hand wash of complainant was effected, but, it is not the evidence of PWs.1, 3 and 5 that hand wash of complainant was done during trap mahazar. Therefore, a reasonable doubt would arise that PW.2 had observed each and every aspect which transpired during alleged trap mahazar. Further, the hand wash of accused resulted in negative as per the FSL report. From the perusal of entire evidence on record, though trap mahazar was drawn in the office of accused,
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 but, the alleged demand and acceptance is not established with convincing evidence.
35. The Hon'ble Apex Court in the case of JAGTAR SINGH v. STATE OF PUNJAB reported in 2023 LIVELAW SC 232 held that, "demand and recovery both must be proved to sustain conviction under the Act- Conviction set aside as demand was not proved". Whereas, the instant case, there is no evidence produced on record to prove the demand of illegal gratification. This is not a case where there was circumstantial evidence to prove the demand. If the evidence produced on record by the prosecution is examined in the light of the law laid down by the Constitution Bench in the case of NEERAJ DUTTA referred supra, the acquittal order passed by the trial Court is legally sustainable.
36. It is fairly well settled that mere recovery of tainted money divorced from circumstances under which such money is found is not sufficient to convict the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 accused when the substantive evidence in the case is not reliable.
37. The Hon'ble Supreme Court in the case of N. VIJAYAKUMAR v. STATE OF TAMIL NADU reported in AIR 2021 SUPREME COURT 766 at paragraph No.26 has held as under:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 : (AIR 2009 SC 2022) and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : (2014 AIR SCW 2080). In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well-settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.
27. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 "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] : (AIR 2011 SC 608) and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 :
(2009) 2 SCC (Cri) 1] : (AIR 2009 SC 2022 :
2009 AIR SCW 1693).
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P11) before LW9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext.P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and
(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
38. In this case, there is no proof of demand. Absence of proof of demand for illegal gratification and mere possession of, or recovery of currency notes is not sufficient to constitute the offences under Sections 7 and 13(1)(d) of the P.C. Act.
39. As the demand is not proved, the Special Court has rightly not raised presumption under Section 20 of the P.C. Act in the absence of proof of demand and acceptance of illegal gratification. Further, the complainant/PW1 prosecuted the accused with ill- motive, as the accused had lodged the complaint against PW.1, hence, with ill-motive; he implicated the accused in this case. The prosecution though not proved its case beyond reasonable doubt that the
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 accused made demand and accepted bribe amount of Rs.7,500/- from PW.1, the Special Court on appreciation of evidence of PWs.1 to 3 and 5, proceeded to acquit the accused, which do not require interference by this Court.
40. In view of the material contradictions as noticed above in the deposition of the key witnesses and the fact that the prosecution failed to prove the demand of illegal gratification by the accused, the benefit of doubt has to be extended in favour of the accused. Accordingly, I pass the following:
ORDER i. The appeal is dismissed.
ii. The judgment of acquittal dated 23-07-2014 passed by the XXIII Additional City Civil and Sessions Judge, Special Court, Bengaluru Urban District, Bengaluru City in Special Case No.20 of 2007, against the accused
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NC: 2024:KHC:41962 CRL.A No. 856 of 2014 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, is hereby confirmed.
Registry is directed to return the Special Court records along with a copy of this judgment to the Special Court, forthwith.
Sd/-
(VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 1