Karnataka High Court
S. Pampapathi S/O. Late Shankrappa vs The State Of Karnataka on 16 January, 2024
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CRL.A No.2585 OF 2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.2585 OF 2013
BETWEEN:
S.PAMPAPATHI
S/O.LATE SHANKRAPPA
AGE:47 YEARS
OCC:ASSISTANT DIRECTOR OF FISHERY
MANJANNA
E GRADE-II, FISHERY DEPARTMENT, BELLARY
Digitally signed R/O HOUSE NO.184/9
2ND CROSS, MARITHINAGAR
by MANJANNA E
Date: 2024.01.24
15:44:22 +0530
1ST WARD, OPPOSITE REMAND HOME
BELLARY ...APPELLANT
(BY SRI.J.BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS LOKAYUKTHA POLICE
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD ...RESPONDENT
(BY SRI.ANIL KALE, SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN SPL.
CASE NO.23/2011 ON THE FILE OF THE PRL. SESSIONS (SPL.)
JUDGE, BELLARY, PERUSE THE SAME, ALLOW THIS APPEAL,
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE U/S 7
R/W 13 (2) AND 13(1) (D) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND SET THE APPELLANT AT LIBERTY.
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CRL.A No.2585 OF 2013
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Appellant/accused feeling aggrieved by the judgment of trial Court on the file of Principal Sessions (Spl) Judge, Bellary in Special Case No.23/2011 dated 08.03.2013 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that accused being public servant working as Assistant Director of Fisheries Department, Bellary on 13.03.2010, when complainant CW1- A.N. Nagaraj requested the accused to forward his application to higher authority for extension of fishing rights in the tank of Nagalkere, accused demanded bribe of Rs.5,000/- for extension of the said right to complainant for the year 2010-11 due to flood caused during 2009. After some negotiation accused had reduced -3- CRL.A No.2585 OF 2013 the bribe amount to Rs.3,500/- and received advance bribe amount of Rs.500/- from the complainant. On 20.05.2010 in the office of Assistant Director of Fisheries, Bellary, accused demanded bribe from complainant for the purpose of fishing right to be extended for the year 2010-11. On complainant paying the money of Rs.3000/- in pursuance of demand made by the accused, accepted the same to forward the application of complainant. On these allegations made in the complaint, the investigating officer carried out the investigation and filed the charge sheet against the accused for the offences punishable under Section 7 r/w 13(2) and 13(1)(d) r/w 13(2) of P.C. Act.
4. In response to summons issued by the trial Court, the accused has appeared through counsel. The trial Court on being prima facie satisfied of the charge sheet materials framed the charges against the accused for the offences alleged against him. Accused pleaded not guilty and claimed to be tried. The prosecution to prove the allegations made against the accused, relied on the -4- CRL.A No.2585 OF 2013 oral testimony of PWs 1 to 11 and the documents Exhibits P1 to P69, so also got identified MOs No.1 to 16. The documents at Ex-D1 and D2 came to be marked from the defence. The trial Court after hearing the arguments of both sides and on appreciation of oral and documentary evidence placed on record by the prosecution convicted the accused for the offences alleged against him and imposed sentence as per order of sentence.
5. Appellant/accused challenging the judgment of trial Court contended that the trial Court has not properly appreciated the evidence on record and arrived to an improper conclusion holding the accused guilty for the offences alleged against him. The evidence placed on record by the prosecution is insufficient to prove the alleged demand and acceptance of bribe money. The evidence of shadow witness PW1- M. Shivaji Rao and the complainant PW7- Nagaraj are contrary to each others version on the material aspect of the accused having demanded and accepted the bribe money. The trial Court has not properly appreciated Ex-D2 and the defense of -5- CRL.A No.2585 OF 2013 accused in the light of evidence placed on record by the prosecution. The sanctioning authority PW8-D.M. Rajanna without applying the mind has mechanically accorded sanction to prosecute the accused vide Sanction order, Ex-P58. The material inconsistency in the evidence of shadow witness PW1- M. Shivaji Rao, complainant PW7 - Nagaraj would create serious doubt regarding the demand and acceptance of bribe money. There is inordinate delay in filing the complaint after the alleged demand of accused to pay bribe money of Rs.3,500/- and the same has not been satisfactorily explained by the prosecution through the evidence placed on record. The approach and appreciation of oral and documentary evidence and finding recorded by trial Court are against the material evidence placed on record by the prosecution and the same cannot be legally sustained. Therefore, prayed for allowing the appeal and to set aside the judgment of trial Court, consequently to acquit the accused from charges levelled against accused.
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CRL.A No.2585 OF 2013
6. In response to the notice of appeal learned special public prosecutor has appeared for respondent. The trial Court records have been secured.
7. Heard the arguments on both sides.
8. On the basis of material evidence placed on record and the case made out by the prosecution, the following points would arise for consideration.
1) Whether the prosecution has proved all ingredients to attract the offences punishable under Section 7 and 13(1) (d) r/w Section 13(2) of P.C. Act?
2) Whether the impugned judgment suffers from legal informative or perversity and thus call for interference?
3)What order?
9. Regarding point No.1 and 2: On careful perusal of oral and documentary evidence placed on record by the prosecution and the complaint allegations Ex-P54, it would go to show that accused was working as Assistant Director of Fishery, Grade-II, Fishery -7- CRL.A No.2585 OF 2013 Department, Bellary. The complainant- A.N. Nagaraj alleged in the complaint Ex-P54 that he has undergone training through fishery department in the year 2004 and thereafter he was having contract for fishing for the year 2005-10. In the year 2009 there was excess rain and the residents of that area destroyed the bund of the lake to save their lives. About 70% to 80% of water has flown out of the tank and the fishes were also washed away, due to which complainant sustained huge loss. The complainant moved an application for extension of his contract for one more year to compensate the loss incurred by him. The officer concerned in the fishery department has assured the complainant that his application would be considered and instructed him to file the application. On such instructions complainant has submitted his application dated 13.02.2010 to the accused who assured him that same would be forwarded to his higher authorities.
9(a) The complainant has approached accused after fifteen days and enquired about his application. Accused -8- CRL.A No.2585 OF 2013 has stated that due to rush of work, the application was not forwarded and he will forward the same within 2-3 days. After some days, complainant again approached the accused and at that time accused demanded bribe money of Rs.5,000/-. The complainant being not willing to pay the bribe money approached Lokayukta Police on 30.04.2010 and informed about the accused demanding bribe money of Rs.5,000/- for forwarding his application to get extension of one more year.
9(b) The Inspector of Lokayukta to confirm about the information of complainant, gave tape recorder and instructed the complainant to record conversation. Complainant on the same day approached the accused and made enquiry about his work. The accused has demanded bribe money of Rs.5,000/- and thereafter reduced the same to Rs.3,500/-. Complainant gave Rs.500/- as advance amount, but the said conversation of giving advance was not recorded. On 20.05.2010 complainant approached the Lokayukta office with balance amount of bribe money of Rs.3,000/- and produced the tape recorder -9- CRL.A No.2585 OF 2013 containing the conversation of complainant and accused. Complainant also filed complaint Ex-P54 and on the basis of it, FIR was drawn Ex-P61.
10. The Investigating Officer PW11- Satish S Chituguppi on registering the case secured the panch witnesses G. Basavarajappa and M. Shivaji Rao. Thereafter conducted entrustment panchnama process Ex-P15 and the photographs were taken Ex-P2 to P14. The investigating officer PW11- Satish S Chituguppi along with staff, complainant and the panch witnesses proceeded to the office of accused. Complainant and shadow witness- PW1- M. Shivaji Rao were sent to the office of accused and instructed the complainant to give bribe money if the accused demand for the same and record the conversation in the tape recorder given to him. On accused accepting the bribe money after demanding was instructed to give signal by coming out of the office by wiping the face with hand kerchief. Complainant after some time came out of the office and gave signal as instructed. The investigating officer PW-11- Satish S Chitaguppi along with staff and
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CRL.A No.2585 OF 2013 another pancha went to the office and complainant showed the accused as the person who demanded and accepted bribe money of Rs.3,000/-. The trap process was conducted and bribe money was recovered from the pant pocket of the accused. Accused gave defence statement Ex-P16, further complainant produced the tape recorder conversation. The trap panchanama Ex-P50 was conducted and photographs were taken at that time Ex-P28 to P47. On the basis of these material evidence through the evidence of shadow panch witness PW1- M. Shivaji Rao, complainant PW7- Nagaraj, the prosecution alleges that accused has demanded and accepted bribe money of Rs.3,000/- from the complainant and identified as MO No.1 to 6. The said evidence is sought to be corroborated by the evidence of police official, PW10- Ravi who was present along with the investigation officer through out the entire process and that of investigation officer PW11- Satish S Chituguppi.
11. The accused was working as Assistance Director of Fishery, Grade-II, Fishery Department, Bellary. The
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CRL.A No.2585 OF 2013 prosecution to prove the said fact, relies on the true copy of attendance register extract Ex-P52, the evidence of sanctioning authority PW8- D.M. Rajanna and the sanction order Ex-P58, so also the service particulars Ex-P63. The accused has given defence statement Ex-P16, further the accused during the course of his 313 Cr.P.C. statement do not deny that he was working as Assistant Director of Fishery, Grade-II, in Fishery Department, Bellary. The evidence of PW4- P. Rammohan Reddy, Senior Director in Fishery Department, Bellary would go to show that on 20.05.2010 accused was on duty in the office and has given attendance register extract Ex-P52. The said evidence is further corroborated by the evidence of investigating officer PW11- Satish S Chitaguppi. Therefore, the prosecution out of the above referred material evidence on record has proved that accused is a public servant working as Assistant Director of Fisheries, Grade- II, Fishery Department, Bellary within the meaning of Section 2(c) of P.C. Act.
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CRL.A No.2585 OF 2013
12. The oral evidence of shadow witness PW-1- M. Shivaji Rao, complainant PW7- Nagaraj and that of police official PW10- Ravi who all through out was present with the investigating officer and that of PW11- Satish S Chitaguppi would go to show that they have spoken about complainant approaching Lokayukta office on 30.04.2010 alleging that complainant is demanding bribe money of Rs.5,000/- for forwarding his application to the higher authorities for extension of contract for another year to compensate the complainant for the loss that he has suffered due to heavy rain in the year 2009. The residents of that area to save their lives destroyed the bund of the lake due to which 70% to 80% of water has flown out of the tank. The fishes were also washed away, due to which complainant suffered heavy loss.
12(a) Complainant approached Lokayukta office on 30.04.2010 and informed the Investigating Officer PW11- Satish S Chitaguppi that accused is demanding bribe money of Rs.5,000/- for forwarding his application. The investigating officer PW11- Satish S Chitaguppi gave tape
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CRL.A No.2585 OF 2013 recorder to record conversation. Accused approached Lokayukta Police on 20.05.2010 and produced the tape recorder conversation, further gave oral statement which was reduced into writing and the same came to be registered as complaint Ex-P54 on the basis of it, case was registered by drawing FIR Ex-P61. Complainant along with his complaint has also produced documents at Ex-P55 to P57 and endorsement of accused on Ex-P56.
12(b) The investigation officer PW11- Satish S Chitaguppi secured two panch witnesses G. Basavarajappa and M. Shivaji Rao. The copy of complaint was given to them, further played tape recorded conversation containing the voice of accused on demand of bribe money. The cassette of the tape recorder is at MO No.14 and the conversation was reduced into writing Ex-P49. Complainant produced cash of Rs.3,000/- of Rs.500/- denomination and the number of the currency notes were noted in the separate sheet Ex-P1. Thereafter, phenolphthalein powder was smeared on the currency notes (MO. No.1 to 6). The sodium liquid was prepared
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CRL.A No.2585 OF 2013 and the sample was taken in MO No.7 and hand wash of CW2 panch witness was taken in MO No.8 and accordingly entrustment panchanama was prepared Ex-P15. The entire process of entrustment panchanama was photographed Ex-P2 to P14.
13. Thereafter, the investigating officer PW11- Satish S Citaguppi along with staff, complainant and the panch witnesses proceeded to the office of accused. Complainant and shadow panch witness PW1- M. Shivaji Rao were sent to the office of accused with instruction to the complainant- Nagaraj and to give the bribe money, if accused demand for the same. On accused accepting the bribe money, he was instructed to give signal by wiping his face with kerchief. Complainant at about 2:15 p.m. came out of the office and gave signal as instructed. On receiving such signal, the investigating officer PW11- Satish S Chituguppi along with staff and another pancha went inside the office of accused. On enquiry with the complainant Nagaraj, he showed the accused in the office and stated that accused has
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CRL.A No.2585 OF 2013 demanded and accepted bribe money, after counting the money kept in his pant pocket. PW11- Satish S Chituguppi on disclosing his identity asked the accused to co-operate for the investigation. Thereafter, sodium liquid was prepared and sample was taken MO No.16 and the hand wash of accused right and left hand was collected MO No.9 and 10. Accused has produced bribe money from his pant pocket MO No.1 to 6. The said currency notes smeared with phenolphthalein powder and the numbers of currency notes noted in Ex-P1 were matched. The investigating officer PW11- Satish S Chituguppi arranged another pant for accused and secured the pant worn by the accused, since the bribe money was accepted by accused and kept in the pant pocket which he identifies MO No.12. The pant pocket was dipped in sodium liquid and the same turned to pink, the same is identified as MO No.11. Accused has given defence statement as Ex-P16 and also produced the documents of complainant Ex-P17 to P21, P22 to P24, P25 to P27. The trap panchanama was accordingly prepared Ex-P50 and the entire trap process is photographed
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CRL.A No.2585 OF 2013 Ex-P28 to P47. The investigating officer PW11- Satish S Chituguppi secured attendance extract Ex-P52. Thereafter, complainant has produced the tape recorder containing the conversation of complainant and accused. The cassette was played and found the accused demanded and accepted bribe money. The said cassette was seized MO No.13 and conversation was reduced into writing Ex-P48. The above referred evidence is consistent with each others version with regard to accused having demanded and accepted bribe money.
14. The above referred evidence is further corroborated by the evidence of police official PW10- Ravi who was present with investigating officer PW11- Satish S Chituguppi right from filing the complaint by PW7- Nagaraj till the completion of trap process. The evidence of PW2- Kote Uppalappa, PW3- Anjaneya would go to show that they were present in the chamber of accused when the complainant entered the chamber of accused and paid money to the accused, who accepted the same and kept in his pant pocket. They have spoken about their presence in
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CRL.A No.2585 OF 2013 the office of accused for talking about fishery in the lake. PW2- Kote Uppalappa has identified him appearing in the photograph Exs.P46 and P47 along with CW5- Govindappa and CW6- Mahadevappa. The accused in the defence statement Ex-P16 has confirmed the presence of PW2, CW5- Govindappa and CW6- Mahadevappa in the office and reiterated the same during the course of his 313 Cr.P.C. statement. Therefore, there is no reason to disbelieve the evidence of PW2- Kote Uppalappa and PW3- Anjaneya who were present in the chamber of accused and they having seen complaint paying bribe money of Rs.3,000/-, the accused on accepting the same kept in his pant pocket.
15. PW4- P. Rammohan Reddy has deposed to the effect that he knows the complainant and accused, further accused was working as Assistant Director of Fisheries, Grade-II. Complainant had taken contract of fishing in Nagalkere and due to heavy rains in 2009, the water in the lake was flown out of the tank, due to destroying of bund by the villagers and the complainant has suffered
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CRL.A No.2585 OF 2013 huge loss, since the fishes were also flown out of the tank. When complainant enquired him about compensation, he has informed the complainant to file the application and if it is forwarded to him by the accused, then he will consider the same. PW5 - S. Mallikarjun working under the accused in the same office and also the father of deceased S. Ramulu who had undertaken contract of fishing along with complainant Nagaraj has deposed to the effect that on 30.04.2010 at 4.00 to 4:15 p.m. when he came to the office Nagaraj was found in the office and on enquiry he told that he had came to enquire the accused about extension of period of his contract for fishing. Complainant has also told him that accused is demanding bribe money of Rs.5,000/- for forwarding his application. PW5- S Mallikarjun told complainant that he will tell the accused to forward his application.
16. The evidence of PW8- D.M.Rajanna being sanctioning authority would speak about according sanction to prosecute the accused Ex-P58. The evidence of FSL officer PW9- Duryodhana and the FSL report Ex-P59
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CRL.A No.2585 OF 2013 speaks about the presence of both phenolphthalein and sodium carbonate in article No.2, 4, 5, 7 and presence of only phenolphthalein is detected in article Nos.6 and 8. The presence of only sodium carbonate is detected in article Nos.1 and 3. The currency notes with denomination and serial number tallies with those of currency notes seized during the trap panchanama and in the invoice. The above referred material evidence placed on record by the prosecution would go to show that accused has demanded and accepted bribe money. The tainted currency notes recorded in Ex-P1 were recovered from the possession of accused.
17. The accused in his defence statement Ex-P16 has contended that he has been falsely implicated in this case, since he has stated to the complainant that right of fishery cannot be extended. The accused during the course of his statement under Section 313 of Cr.P.C has claimed that he has purchased the fishing net on 20.06.2009 for Rs.4,000/- and for repayment of the same, he is paying cash of Rs.3,000/- and the complainant had put the said
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CRL.A No.2585 OF 2013 money in the hands of accused. It is at that time, the Lokayukta Police came to the office and on force got his defence statement Ex-P16.
18. Learned counsel for accused has argued that for want of certificate in terms of Section 65B (4) of Indian Evidence Act, the cassette seized in this case MO No.13 and 14 cannot be accepted to prove the alleged demand and acceptance of bribe money. In support of such contention reliance is placed on the judgment of Hon'ble Apex Court in Ravinder Singh @ Kakku vs. State of Punjab, reported in 2022 LiveLaw (SC) 461 wherein it has been observed and held that certificate under Section 65B (4) is a mandatory requirement for production of electronic evidence. Oral evidence in place of such certificate cannot possibly suffice. On the contrary, learned Special Public Prosecutor relied on the judgment of Hon'ble Apex Court in State by Karnataka Lokayukta Police Satation, Bengaluru vs. M.R Hiremath in Crl.A No.819/2019, the said case was arising out of quashing of proceedings under Section 482 of Cr.P.C., wherein the
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CRL.A No.2585 OF 2013 Hon'ble Apex Court held that the question of considering admissibility of electronic records in terms of Section 65B of Indian Evidence Act would arise only when the electronic records are tendered in evidence.
19. The learned Special Public Prosecutor relied on the judgment of Hon'ble Apex Court in Arjun Panditrao Khatkar vs. Kailash Kushanrao Gorantyal and Others, reported in (2020) 7 SCC 1, wherein it has been observed and held in paragraph No.32, 33 and 34 as under:
32. Section 65B of Evidence Act, 1872 sub section (1) begins with non obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only takes effect if further conditions mentioned in the section are satisfied in relation to both the information and computer in question; and if such conditions are met, the "document" shall then be admissible in any proceedings. The words "... without further proof or production of the original..." make it clear that once the deeming fiction is given effect by the fulfillment of the conditions mentioned in the section, the "deemed
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CRL.A No.2585 OF 2013 document" now becomes admissible in evidence without further proof or production of original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible.
33. The non obstante clause in section 65-B (1) make it clear that when its come to information contained in electronic record, admissibility and proof thereof must follow the drill of section 65-B, which is special provision in this behalf. Section 62 to 65 being irrelevant for this purpose. However, section 65-B (1) clearly differentiates between the "original" document - which would be the original "electronic record" contained in the "computer" in which the original information is first stored and the computer output containing such information, which then may treated as evidence of the contents of the "original" document. All this necessarily shows that section 65-B differentiates between the original information contained in the "Computer" itself and copies made there from-the former being primary evidence, and the later being secondary evidence.
34. Quite obviously, the requisite certificate in section 65-B (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop, computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is
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CRL.A No.2585 OF 2013 owned and/are operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network"
(as defined in the IT Act 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving of information contained in such electronic record can be in accordance with section 65-B (1), together with the requisite certificate under section 65-B (4).
In view of the principles enunciated in this judgment of Hon'ble Apex Court, it is evident that certificate in terms of Section 65-B (4) is necessary only when original of the document is not produced. If the original document itself is produced then it becomes primary evidence and the certificate under Section 65-B (4) of the Indian Evidence Act is not necessary.
20. In the present case, small tape recorder was provided by investigating officer PW11- Satish S Chitaguppi containing a cassette for recording the conversation. The original cassette itself is produced as MO No.13 and 14 which is primary evidence, therefore, the certificate under Section 65-B (4) of Indian Evidence
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CRL.A No.2585 OF 2013 Act is not necessary. There is no need to produce the tape recorder itself, since the contents of conversation in MO No.13 and 14 are recorded in the cassettes. The contents of the cassettes MO No.13 and 14 are not copied from any other system or the original device. If the contents are stored in any laptop, computer, a computer tablet or even a mobile and the same is copied from such device and the copied either in cassette or CD is produced, then it would become secondary evidence. It has not been specifically denied in the cross examination of investigation officer PW11- Satish S Chitaguppi that he has not provided any tape recorder with cassette for recording the conversation between complainant and accused.
Therefore, the contention of learned counsel for accused that MOs. No.13 and 14 cassettes are secondary evidence and the same cannot be accepted without requisite certificate under Section 65-B (4) of Indian Evidence Act cannot be legally sustained.
21. Learned counsel for accused relied on the judgment of Hon'ble Apex Court in Neeraj Dutta vs.
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CRL.A No.2585 OF 2013 State (Govt. of N.C.T. of Delhi) reported in 2023 LiveLaw (SC) 211, wherein it has been observed and held that;
"Section 7 and 13 P.C. Act- In absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence- Also, allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The constitution Bench ruling in Neeraj Dutta vs. State, 2022 LiveLaw (SC) Page No.1029 that direct evidence of demand and acceptance of bribe is not necessary for a conviction under the Act does not dilute the requirement of proof beyond the reasonable doubt."
Learned counsel for accused also placed reliance another judgment of Hon'ble Apex Court in K. Shanthamma vs. State of Telangana reported in 2022 LiveLaw (SC) 192 wherein it has been observed and held as under;
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CRL.A No.2585 OF 2013 "Section 7, 13- P.C. Act- The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the P.C. Act. The failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction there under."
Learned counsel for accused also placed reliance on the Co-ordinate Bench judgment of this Court in Adinarayana S/o. Lakshmana vs. Sate of Karnataka by Lokayukta Police in Crl.A No.2713/2013 dated 13.06.2022, wherein it has been observed and held that the prosecution apart from establishing demand and acceptance of illegal gratification has to prove that such illegal gratification was paid for the pending work with the accused. The principles enunciated in the aforementioned judgment of Hon'ble Apex Court and the Co-ordinate Bench judgment of this Court cannot be disputed.
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22. In the present case, the evidence of shadow witness PW1- M. Shivaji Rao and that of complainant PW7- Nagaraj is consistent with regard to accused having demanded and accepted bribe money. The evidence of PW2- Kote Uppalappa and PW3- Anjaneya are the eye witnesses who were present in the chamber of accused at the time of complainant paying money and accepting the same by the accused, thereafter, accused keeping the money in his pant pocket which came to be seized under the trap panchanama Ex-P50. The said evidence is also further corroborated by the evidence of PW10- Ravi and that of investigating officer PW11- Satish S Chitaguppi.
23. Learned counsel for accused also argued regarding the inconsistency in the evidence of PW1- M. Shivaji Rao and PW7- Nagaraj as to the complaint Ex- P54. According to the evidence of PW7- Nagaraj and the evidence of investigating officer PW11- Satish S Chitaguppi, complainant appeared before the Lokayukta Police on 20.05.2010 and produced the tape recorder containing the conversation of complainant and accused
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CRL.A No.2585 OF 2013 and gave oral statement which was reduced into writing by computerizing in the office and the same is treated as complaint Ex-P54. Whereas, it is the evidence of PW1- M. Shivaji Rao in the cross-examination that complaint shown to him was hand written. However, he has not disputed that Ex-P54 complaint was given by PW7- Nagaraj. Whereas, PW7- Nagaraj stated in the cross-examination that he do not remember that he got prepared Ex-P54 while going to Lokayukta office or not. There is nothing in the cross-examination of investigating office PW11- Satish S Chitaguppi that the oral statement of complainant was reduced into writing and treated it as complaint Ex-P54. Therefore, the aforementioned minor inconsistency appearing in the evidence of PW1- M. Shivaji Rao and PW7- Nagaraj cannot take away the case of prosecution and to hold that the complaint Ex-P54 is a manipulated or a fabricated document.
24. The evidence of PW7- Nagaraj would go to show that on 30.04.2010 accused made first demand for bribe money of Rs.5,000/- and thereafter it was reduced to
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CRL.A No.2585 OF 2013 Rs.3,500/-. The said conversation is recorded in the cassette MO No.14. Complainant again came back to the office of accused and paid advance money of Rs.500/- out of the bribe demanded by the accused. However, that portion of giving amount of Rs.500/- was not recorded in MO No.14, since he had forgotten to operate the tape recorder at that time. The evidence of investigating officer PW11- Satish S Chitaguppi would go to show that complainant has stated before him that second time when he met the accused on 30.04.2010, the conversation regarding payment of Rs.500/- as advance money out of the bribe amount demanded by accused is not recorded, since complainant did not operate the tape recorder at the time of his second visit. Therefore, in view of the said positive evidence on record, the non recording of conversation of complainant giving advance bribe money of Rs.500/- in MO No.14 cannot take away the case of prosecution, since the demand and acceptance of remaining bribe money is proved by the prosecution out of the above referred evidence on record.
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25. Learned counsel for accused also vehemently argued regarding the delay in filing the complaint. The information regarding accused demanding bribe money was known to complainant PW7- Nagaraj and the investigating officer PW11- Satish S Chitaguppi as on 30.4.2010. Complainant though recorded conversation of complainant and accused MO No.14 on 30.4.2010, but has chosen to file the complaint of 20.05.2010 and the said delay has not been explained by the prosecution. It was open for the investigating officer PW11- Satish S Chitaguppi to give bribe money to complainant and further proceeded in the matter, since complainant never expressed before him that he was not in a position to arrange money of Rs.3,000/-. Even if it is accepted that there is some delay in complainant approaching the investigating officer to produce the conversation MO No.14 and in filing the complaint Ex-P54 will not affect the case of prosecution, since there is nothing to suggest by evidence on record that there was scope for tampering the conversation recorded in MO No.14.
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26. It is confronted during the course of cross-examination of investigating officer PW11- Satish S Chitaguppi the receipt Ex-D2. Learned counsel for accused on the basis of it has argued that the said receipt speaks about regarding giving of Rs.3,000/- to the accused, since complainant has purchased the fish net worth Rs.4,000/- and not bribe money. The said receipt was not confronted to PW7 complainant- Nagaraj during the course of his evidence who would have been best and proper person to offer explanation regarding the receipt Ex-D2. There is no evidence on record to show that fish nets are being sold in the office of accused that too on credit basis and Ex-D2 is not a receipt in respect of Government transaction. Accused surprisingly while giving defence statement Ex-P16 has never stated the said fact and the receipt Ex-D2 related to purchase of fish net. Therefore, the tainted money found in possession of accused cannot be tagged with the receipt Ex-D2 confronted during the cross-examination of investigating officer PW11- Satish S Chitaguppi. In so far as the pending work of complainant
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CRL.A No.2585 OF 2013 with accused is concerned, the evidence on record would demonstrate that complainant has moved application for extension of contract for another year due to loss suffered on account of heavy rain in the year 2009. The said application was moved through accused who was supposed to forward the same to his higher authorities and as on the date of trap, accused has not forwarded the application of complainant to his higher authorities for grant of compensation. PW4- P. Rammohan Reddy has spoken about the said fact during the course of his evidence. Therefore, the fact remains that work of complainant was pending with accused, since he was supposed to forward the application of complainant to higher authorities for considering the same. Therefore, all the legal requirements to prove the offence against accused that he has demanded and accepted bribe money being public servant and the work of complainant was pending with accused as on the date on trap on 20.05.2010.
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CRL.A No.2585 OF 2013
27. The trial Court has rightly appreciated the oral and documentary evidence placed on record by the prosecution in holding that prosecution has proved beyond all reasonable doubt that accused has demanded and accepted bribe money. The findings recorded by the trial Court are based on proper appreciation of material evidence placed on record and the trial Court rightly rejected the defence of accused and also tagging the receipt Ex-D2 with the bribe money found in possession of accused. On the question of quantum of sentence also the trial Court appropriately exercised judicial discretion in imposing the sentence. Therefore, there are no any justifiable and valid grounds to deviate from the findings recorded by the trial Court. Consequently, point No.1 and 2 for determination are answered in negative and proceed to pass the following:
ORDER Appeal filed by appellant/accused is hereby dismissed, as devoid of merits.
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CRL.A No.2585 OF 2013 The judgment of the trial Court on the file of Principal Sessions (Spl) Judge, Bellary in Spl. Case No.23/2011 dated 08.03.2013 stands confirmed.
The Registry is directed to transmit the records with the copy of this judgment to the trial Court.
Sd/-
JUDGE ABK