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Karnataka High Court

Dr Siddagangaiah vs State Of Karnataka on 22 May, 2023

Author: K.Natarajan

Bench: K.Natarajan

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                                                            CRL.A No. 797 of 2011




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 22ND DAY OF MAY, 2023

                                                BEFORE
                                 THE HON'BLE MR JUSTICE K.NATARAJAN
                                   CRIMINAL APPEAL NO. 797 OF 2011
                      BETWEEN:

                      1.   DR SIDDAGANGAIAH
                           S/O LATE A SIDDAPPA,
                           AGE : MAJOR,
                           HEALTH & FAMILY WELFARE OFFICER (RETD.)
                           BANGALORE CITY,
                           PRESENTLY R/AT "SISHRUTHA",
                           6TH CROSS, ASHOKANAGAR,
                           TUMKUR- 572 103
                                                                         ...APPELLANT
                      (BY SRI. KARTHIK YADAV V., ADVOCATE
                       FOR SRI. S.K. VENKATA REDDY.,ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA
                           BY POLICE INSPECTOR,
                           POLICE WING,CITY DIVISION,
Digitally signed by        KARNATAKA LOKAYUKTA,
SHOBHA C
Location: High             BANGALORE- 560 001
Court of Karnataka
                                                                        ...RESPONDENT
                      (BY SRI. VENKATESH S. ARBATTI, SPECIAL COUNSEL)

                            THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
                      CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 13.7.11 PASSED
                      BY SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, BENGALURU
                      URBAN DISTRICT, BENGALURU CITY, IN SPL.C.C.NO.48/06 -
                      CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
                      PUNISHABLE UNDER SECTION 7 OF PREVENTION OF CORRUPTION
                      ACT AND SECTION 13(1)(d) PUNISHABLE UNDER SECTION 13(2) OF
                      PREVENTION OF CORRUPTION ACT, 1988 AND ETC.

                           THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:
                               -2-
                                        CRL.A No. 797 of 2011




                         JUDGMENT

This appeal is filed by the appellant-accused under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and order of sentence passed by the Special Judge in Spl.C.C.No.48/2006 dated 13.07.2011, found guilty and convicted and sentenced to undergo rigorous imprisonment for a period of 9 months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 3 months and further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 3 months. Both substantive sentences of imprisonment shall run concurrently.

2. Heard the learned counsel for the appellant and Sri Venkatesh S. Arbatti, learned Special counsel for the respondent-Lokayukta.

3. The rank of the parties before the Trial Court is retained for the sake of convenience.

CRL.A No. 797 of 2011

4. The case of the prosecution is that PW.3- Gnanaprakash who is said to be the Medical Officer has filed a complaint to the Lokyuktha Police as per Ex.P.19 on 12.08.2005 alleging that he was working as a Medical Officer at Government Hospital, Anekal and his District Health Officer was Dr.Siddagangaiah (the present appellant) harassed him from past 4 months for demand of money for various needs. As he did not respond for the same, the appellant wrote a letter to the Deputy Commissioner and Government on various occasions, as a result, the complainant was suspended. In order to revoke the suspension order, a letter from the accused (present appellant) was necessary, therefore, the complainant contacted him on 11.08.2005 in the afternoon in his office at District TB Office, Sajjanrao Circle. The appellant is said to be asked to come on 12.08.2005 morning along with money to his office i.e., DHO Office, Old Madras Road, Bengaluru where the appellant is said to be demanded Rs.15,000/- from him as bribe amount. Since the complainant was not interested to give the bribe, he lodged a complaint before PW.4-Lokayuktha Dy.S.P. In turn, PW.4 endorsed the complaint to PW.5-the Police Inspector of Lokayuktha to register the case. -4- CRL.A No. 797 of 2011 Accordingly, the complaint came to be registered by PW.5 and PW.5 set up a trap by preparing the pre trap panchanama and subsequently, sent Rs.15,000/- through PW.3-defacto complainant. PW.2-Bettaiah also sent along with PW.3 as a shadow witness to the office of the appellant-accused. At that time, the appellant said to be in the meeting in his office and after seeing the defacto complainant, he came out near the parking area and the complainant said to be asked about his revocation of the suspension order. For that, the appellant said to be demanded the money, then, the complainant handed over the tainted money of Rs.15,000/- to the accused and thereafter, the accused went inside his office, then, the complainant gave signal to the Investigating Officer, immediately, the accused was trapped, they seized Rs.15,000/- from his pocket under the panchanama. His hands were washed with the sodium carbonate solution, it turned pink and the same was seized under the panchanama. Subsequently, the police arrested the appellant and in turn, they produced him before the Special Court and after completion of the investigation, the police filed the charge-sheet against the appellant for the offence punishable under Sections 7, 13(1)(d) -5- CRL.A No. 797 of 2011 read with Section 13(2) of the P.C. Act. The presence of the accused was secured by the Trial Court. The charges were framed against him. He has pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 5 witnesses and got marked 34 documents and also marked 18 material objects as per MOs.1 to 18. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of the total denial and he has given a reply statement under Section 313(5) of Cr.P.C. After hearing the arguments, the trial Court found the accused guilty, convicted and passed sentences as stated above which is under challenge.

4. The learned counsel for the appellant has contended that the trial Court committed error in convicting the accused by finding him guilty as there is no corroboration of the evidences between the PW.2-the shadow witness and PW.3-the complainant. The complainant also turned hostile. The police said to be seized the audio cassette from PW.3 where he said to be recorded in respect of the demand made by the accused. But the said cassette was not sent to the FSL, the same was admitted by PW.5 in his cross-examination. Even the -6- CRL.A No. 797 of 2011 conversation is not able to hear properly as it is not audible. Therefore, the demand was not proved by the prosecution and further contended that in order to prove the voice of the accused, the Police Officer or Investigating Officer have not examined any of the officials working in the DHO office to identify the voice of the accused. He further contented that there is no entrustment of work with the accused. He has no role to play in order to send any revocation order of suspension in order to show official favourism as he has no authority or capacity to recommend the Commissioner or Government for revocation of suspension. As per the Notification issued by the State Government under K.C.S. (C.C.A.) Rules, 1957, the DHO is the Authority to recommend only the officials working under him under Table I and II. Whereas, the complainant was the Medical Officer does not come under the control of the DHO. Therefore, there is no work pending with him, hence, the question of recommending the Government for revocation of suspension does not arise. The learned counsel further contended that there is no proper evidence in respect of demand made by the appellant. The evidences of PWs.2 and 3 are silent in this regard and there is a contradiction in their -7- CRL.A No. 797 of 2011 evidences. The witnesses especially PWs.2 and 3 have stated that they have not given any statement to the Investigating Officer stating that the accused demanded the bribe and accepted. Mere recovery of money from the accused-appellant is not a ground to convict the accused. When the demand is not proved, mere acceptance is not yet proved. Therefore, the trial Court committed error in accepting the evidence and presuming the offence committed by the accused under Section 20 of the P.C. Act is not correct and hence, prayed for acquitting the appellant by setting aside the judgment of conviction and sentence. In support of his contention, the learned counsel has relied upon the judgment of the Co-ordinate Bench of this Court in the case of R.Srinivasan and Anr. v. State in Crl.A.No.702/2015 reported in 2016 CRI.L.J. 3066 and another judgment of the Hon'ble Supreme Court in the case of C.M.Girish Babu v. CBI, Cochin, High Court of Kerala reported in (2009) 3 SCC 779.

5. The learned counsel for the appellant also contended that there is a defect in framing of charge as the date of commission of offence is stated as 20.06.2005 which is -8- CRL.A No. 797 of 2011 not correct. Therefore, on that ground the appeal shall be allowed.

6. Per contra, learned Special counsel for the respondent has strenuously contended that the judgment of conviction and sentence is in accordance with law where the appellant was a District Health Officer who has an authority to recommend for revocation of suspension as he himself admitted in the statement under Section 313 of Cr.P.C. He himself has given report and based upon his report, the complainant has been suspended by the State Government. The learned counsel also contended that regarding framing of charge, there is a typographic error in respect of date, it was not elicited either in the cross-examination of the witnesses or before the Investigating Officer and not brought to the notice of the Court. Therefore, as per Section 464 of Cr.P.C., if there is any error in the charge, the finding of sentence cannot be set aside. The learned counsel for the respondent further contended that the evidence of PWs.2 and 3 are very clear regarding demand and acceptance of the tainted notes by the accused on 12.08.2005. In the evidence of PWs.2 and 3, they have categorically stated that when the complainant -9- CRL.A No. 797 of 2011 approached the accused for revocation, the accused demanded first to pay money, though there is little discrepancy in the demand where the money has to be paid first, that itself is not a ground to say that there is no demand and infact, there is corroboration between both the witnesses i.e., complainant as well as the shadow witness. They have categorically stated that there was demand made by the accused except the complainant turned hostile in respect of the statement given by him before the police and he has stated that at the time of recovery of money from the accused, he stood outside near the office, but in the factual aspect, he has given evidence regarding demand and acceptance. Therefore, the question of disbelieving the evidence of PWs.2 and 3 does not arise. The learned counsel for the respondent also contended that as on the date of complaint, the appellant made first demand, it was revealed in the complaint as well as in the pre-trap panchanama and the evidence of PW.2 also reveals that the accused demanded Rs.15,000/- for recommending for revocation of suspension. Therefore, the initial demand also proved by way of pre trap panchanama and the complaint and evidence of the PWs.2 and 3. The evidence of PWs.4 and 5

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who are the Dy.S.P and the Police Inspector also corroborated with their evidence as there was a demand and the complaint was filed against the appellant before PW.4 and in turn, PW.5 registered a case and issued FIR. The learned counsel also contended that in the statement under Section 313 of Cr.P.C., the accused himself has admitted that on his report only the complainant has been suspended. Therefore, the presumption is available under Section 20 of the P.C. Act which is in favour of the prosecution. The accused is required to rebute, but he has not entered into the witness box and not impeached the evidence of PWs.2 and 3 in the cross-examination. Therefore, prayed for dismissing the appeal.

7. Having heard the arguments and on perusal of the records, the point that arises for my consideration are:

1) Whether the prosecution prove beyond all reasonable doubt that the appellant-accused being a DHO demanded Rs.15,000/- as bribe from PW.3 on 11.08.2005 for sending a recommendation letter for revocation or cancellation of suspension order, which is punishable under Section 7 of the P.C. Act?

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2) Whether the prosecution proves beyond all reasonable doubt that the accused being the public servant abused the official position and demanded Rs.15,000/- by taking advantage, thereby committed the offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act?

3) Whether the judgment of conviction and sentence passed by the Trial Court call for the interference by this Court? "

8. Before discussing with regard to the appreciation of the evidence of the prosecution, it is worth to mention the evidence of the prosecution witnesses which are as follows:

PW.1-M.G.Subba Rao is the Investigating Officer who was filed the charge sheet after receiving the investigation papers from PW.5.

PW.2-R.Bettaiah is the shadow witness who is the SDA working in the Child and Women Welfare Department who has been summoned by the Investigating Officer for the purpose of preparing panchanama and to act as panchas who is also shadow witness supported the case.

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PW.3-Gnanaprakash is the defacto complainant who is the suspended Medical Officer worked in the Anekal, Primary Health Centre who comes under the DHO of Bengaluru Rural District.

PW.4-A.N.Rajanna is the Dy.SP before whom the complaint came to be filed and in turn, the complaint has been sent to PW.5 for registering the FIR.

PW.5-R.C.Lokesh Kumar is the Investigating Officer who registered the FIR, conducted the trap, arrested the accused and part of the investigation was done by him and subsequently handed over the investigation papers to PW.1 and in turn PW.1 filed the charge sheet.

PW.3 - the defacto complainant namely Dr. Gnana Prakash has given evidence stating that from August 2005 he was worked as Administrative Medical Officer at Anekal General Hospital, Anekal. In the year 2005, the accused was also working as District Health Officer at Bengaluru Rural District, Anekal General Hospital which was coming within his jurisdiction. On 06.03.2005, he was kept under suspension by the Government on the recommendation made by the Deputy

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Commissioner, Bengaluru Urban District for not attending National pulse polio programme meeting. He further deposed that on 11.08.2005 at 3.00 p.m., he met the accused in connection with the revocation of his suspension and requested the accused to write recommendation letter for revocation of his suspension to the Government. Before meeting the accused on that day morning, he telephoned him, at that time, the accused asked him to meet him in his office at District TB Office located near Sajjanrao Circle, Bengaluru and the accused demanded Rs.15,000/- from him as bribe. Since he was not willing to pay the bribe amount, on 12.08.2005, he went to the Lokayuktha office, M.S. Building and met the Dy.SP and filed a written complaint as per Ex.P.19 (it was wrongly mentioned as PW.1 in the deposition). Then the complaint was entrusted to the Lokesh Kumar-PW.5 and subsequently the Lokesh Kumar asked him to withdraw Rs.15,000/- from his Bank i.e., Canara Bank which should be of Rs.500/- denomination. Accordingly, he withdrew the cash of Rs.15,000/- consisting of Rs.500/- denominations of 30 currency notes and later, the Lokayuktha police-Inspector called two officials as panch witnesses and phenolphthalein powder has been smeared on the currency

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notes. Later, he was asked to wash his hand in the solution which turned into red colour which was seen by them and subsequently the police handed over the currency notes to him which was said to be kept in his pocket and ordered to hand over to the accused after his demand. He also sent the tape recorder and asked him to switch on while meeting the accused and after payment, he should give signal by wiping the face in hand kerchief and he prepared the detailed panchanama and the denomination of currency notes are mentioned in the paper as per Ex.P.2. The panchanama also identified by him as per Ex.P.3. Subsequently, he further says that at 3.00 p.m., the police along with the panch witness went near the DHO office, the vehicle was parked 300 meters away from the DHO office. Then himself and PW.2-Bettaiah went near the office of the accused, the accused was sitting in his chamber. The meeting was going on and after seeing him, the accused came out from his chamber. They went near the parking area, at that time, the accused asked about PW.2, then he has stated that he is his man, nothing to worry. Then he asked the accused for the favour to get rid of the suspension. Then the accused asked him to give the money first and afterwards he would see. Then

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he handed over Rs.15,000/- to the accused. The accused took the money in one of his hands and kept it in the backside pant pocket and thereafter, he gave signal to the Lokayuktha Inspector, who were sitting below the tree at the distance of 20 meters from them. Then the accused went to his chamber, himself and PW.2 were also went near the chamber, then the Lokayuktha police caught the accused, seized the articles and prepared the panchanama, he also affixed his signature on it and identified Ex.P.5. He has identified M.O.11 as an amount of Rs.15,000/- cash and the cover which was seized as per M.O.12 and subsequently, this witness is treated as hostile in respect of giving statement to the police as per Exs.P.3 and 5. Subsequently, these witnesses have admitted that he has given some of the statements and he has stated that the accused received money in his right hand and kept in his pocket which was marked as Ex.P.20, but he has stated that he has not stated in his statement that applying the sodium carbonate solution in two hands and seizing the same by washing the hand of the accused. In the cross-examination of the accused counsel, he has stated that he has not stated in

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the statement before the police that the accused took tainted money from him in his right hand.

In the cross examination by the Public Prosecutor, P.W.3- complainant has further stated that the accused, after receiving the amount, has kept in the right hand side pocket. However, in the cross examination by the learned counsel for the accused, there is no denial of receiving the money and keeping the same in his pant pocket. Although the complainant denied the cassette (M.O.9), which was seized by the police and it was stated that the cassette was not audible, however, he has stated that there was conversation between the accused and himself in the cassette. In the further cross examination, the complainant has stated that he did not see the investigation officer dipping the hands of the accused in sodium carbonate solution and also not seen the investigation officer seizing the pant (M.O.7). The complainant has further admitted that the accused was responsible for passing the suspension order (Ex.P.1).

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Perusal of the entire cross examination of P.W.3, it indicates that there is no denial of acceptance of the amount of Rs.15,000/- and seizing Rs.15,000/- from his possession.

9. P.W.2-R Bettaiah is the shadow witness in the trial. He has deposed, in his evidence, that, on 12.08.2005, as per the instruction of his superior, he went to the office of Lokayuktha at 12.15 p.m. The Lokayuktha police introduced the complainant and also mentioned about the demand by the accused of Rs.15,000/- for revocation of the suspension of order. Therefore, note sheet was prepared as per Ex.P.2 and it was signed and Rs.15,000/- has been handed over to the complainant. Subsequently, the police as well as the complainant and the shadow witness went near the office of the accused by 3.00 p.m., where the police officer instructed the complainant to hand over the amount demanded to accused only on demand. P.W.2 has further deposed that when himself and the complainant went near the office, the accused came to the complainant and told him that he is the person. They went near the parking area, at that time, the accused is said to be asked the complainant to come. The complainant given amount to the accused and the accused took money from

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his hand and kept it in his hand pocket. The accused asked the complainant to come next day. The complainant went outside giving signal to police. Immediately, the police went to the office of the accused and trapped him. The hands of the accused were washed in the sodium carbonate solution and both the hands turned into pink colour. The police seized the solution in the bottles and marked as M.Os.1 to 4 containing the pink as well as blue colour. The accused took out money and handed over to the police and the same was seized under the panchanama. P.W.2 also stated that the pant of the accused was seized. The right side inner pocket of the pant of the accused was also washed by the police in the solution, which turned into pink colour and the same was seized in the bottles and identified as M.Os.5 and 6. The pant of the accused was seized as per M.O.7. A cover kept in the pant pocket was identified as M.O.8. P.W.2 also deposed that when the accused was asked in respect of receiving money by him, he gave an explanation as per Ex.P.4 that the complainant received Rs.20,000/- from him and returned Rs.15,000/- and he has also stated the same in writing. The investigation officer seized the cassette from the complainant, wherein the accused is said

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to be stated "PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". The police seized the same under panchanama and he identified the cassette at M.O.9 and the sealed cover at M.O.10, currency notes of Rs.500 x 30 at M.O.11 and cash sealed cover at M.O.12. The police also prepared detailed mahazar as per Ex.P.5 and P.W.2 identified his signature as Ex.P.5(a). The police also prepared the sketch at Ex.P.6 and the photos at Exs.P.7 to 16. The police also seized attendance extract copy as per Ex.P.17.

During the cross examination, P.W.2 has deposed that he has not stated about the accused that the demanded the complainant as "£Á£ÀÄ ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr", but in the statement, he has stated that the accused demanded the complainant as "ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ". Further, it is admitted by P.W.2 in the cross examination that in the statement given before the police, he has not stated about the Lokayuktha Inspector asking him to make telephonic call to Doctor Siddalingaiah and asking him at what time, he should come to office of the accused. He has further stated that he has not stated before the police about the Lokayuktha inspector instructing him to

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give signal if the bribe amount is accepted by the accused. He has also admitted that he has not stated before the police about recording in the cassette about the accused saying as "PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". Further, it is admitted that he has not stated about the tallying of the serial numbers of the currency notes seized during trap mahazar with the serial numbers noted during the entrustment mahazar. Except this admission, there is nothing elicited in the evidence of P.W.2 in the cross examination.

10. P.W.4-A.N. Rajanna is a formal witness who received the complaint from the complainant as per Ex.P.19 and asked the police inspector to register FIR.

10. The evidence of P.W.5-R.C. Lokesh Kumar shows that on the basis of the complaint (Ex.P.19), he registered FIR as Ex.P.29 and he identifies both the complainant and FIR as per Exs.P.19 and 29 respectively. He has deposed that he sent requisition to Director, Women and Child Welfare Department, and Commissioner, Transport Department, M.S. Building, Bangalore for sending an official to act as panch witness in the

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trap proceedings. P.W.2 from Women and Child Welfare Department and C.W.3 from Transport Department came to his office to act as witnesses. P.W.5 has also stated that the complainant produced the intended bribe amount of Rs.15,000/- consisting of 30 currency notes of Rs.500/- denomination. P.W.2 noted down the serial numbers of the said currency notes on Ex.P.2, and both P.W.2 and C.W.3 have signed on Ex.P.2. Phenolphthalein powder was smeared on the said currency notes and given to C.W.3 who kept the same after verification in the right side pant pocket of the complainant. P.W.5 has also stated that he instructed the investigation officer to send the complainant and the witness with the amount, which shall be given to the accused only on demand. Thereafter, P.W.2 and P.W.3 and C.W.3 went to the office of accused. Subsequently, the complainant (P.W.3) and P.W.2 went near the office of accused and thereafter, both of them came out from office building of the accused with the accused. They went to the vehicle parking stand located by the side of the house of Dr. Ghouse. Subsequently, the accused went inside the office. Immediately, the complainant gave pre- arranged signal and P.W.5 and other staff, went to the office

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room of the accused, who received the amount. They seized the said amount under the panchanama and the hands of the accused were washed and the pant was also seized under panchanama. Thereafter, they arrested the accused and further investigation was handed over to P.W.1.

11. P.W.1-M.G. Subba Rao, in his evidence, has also stated that he has further investigated the matter and filed charge sheet.

12. Perused the evidence of the prosecution witnesses, especially, P.Ws.2 and 3, who are the star witnesses. It is well settled that the Hon'ble Supreme Court in catena of cases has held that demand and acceptance of bribe is illegal and convicted the accused for illegal gratification.

13. Learned counsel for the appellant has relied upon the judgment of Co-ordinate Bench of this Court in R. SRINIVASAN AND ANOTHER Vs. STATE BY POLICE INSPECTOR, LOKAYUKTHA, BANGALORE reported in 2016

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CRL.L.J. 3066. Paragraph 15 of the said judgment reads as under:

"15. In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do some official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section-7 of the Act. In the case of State through Inspector of Police, Andhra Pradesh v. K. Narasimhachary (2006 Cri LJ 518 (SC) : ((2005) 8 SCC 364 : AIR 2006 SC 628), the Hon'ble Supreme Court has specifically held that the Court is expected to look into closely as to whether the accused had the official role to play in order to do an official favour. As per the facts in the said case, the accused was merely a recommending authority and not the authority to issue valuation certificate. The accused therein was not even a clerk for issuing property valuation certificate. In fact the certificate had already been forwarded and sent to the official authority before the alleged demand for bribe was made by the accused. The above said circumstances created a doubt in the mind of the trial Court and hence accused came to be acquitted. In the challenge before the High Court, the order of the trial Court was confirmed, and the matter was taken up in further appeal before the Hon'ble Supreme Court which has confirmed the order of the Special Court as well as the High Court."

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In the aforesaid judgment, the Co-ordinate Bench, at paragraphs 48 and 81, has held as under:

"48. In the case of C.M. Girish Babu v. C.B.I., Cochin ((2009) 3 SCC 779) : (AIR 2009 SC 2022), in a matter pertaining to recovery of money from the accused, it is held that the presumption under Section 20 of the Act cannot be raised automatically as the burden lies of the State to prove demand and acceptance beyond all reasonable doubt.' In the case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede ((2010) 2 SCC (Cri) 385) : (2009 AIR SCW 5411), the Hon'ble Apex court has considered the provisions Sections 101 and 102 of the Evidence Act at length and has specifically held that 'before the accused is called upon to explain how the tainted money was found to be in his possession, the foundational facts must necessarily be established by the prosecution.' As already discussed, it is incumbent upon the court to consider the explanation offered by the accused when examined under Section 313, Cr.P.C. and the same will have to be tested on the touchstone of preponderance of probabilities and proof beyond reasonable doubt should not be insisted."

"81. The learned trial Judge should have assessed the entire evidence in the light of the defence taken up by the accused and their written statement furnished under Section 313, Cr.P.C. If two views are possible in a criminal case, one in favour of the

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prosecution and the other in favour of the accused, the latter would normally prevail."

14. The learned counsel for the appellant has also relied upon the judgments of the Hon'ble Supreme Court in the case of SURAJ MAL VS. STATE (DELHI ADMINISTRATION) reported in (1979)4 SCC 725 and also C.M. GIRISH BABU VS. CBI, COCHIN, HIGH COURT OF KERALA reported in (2009)3 SCC 779. The Hon'ble Supreme Court in the case of C.M. Girish Babu (supra), at paragraphs 21 and 22, has held as under:

"21. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "4. ... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon

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him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt."

(emphasis supplied)

22. It is against this background of principles we have examined the contention of the appellant that the charges under Section 7 of the Act have not been proved against him.

15. I have perused the judgments of the Hon'ble Supreme Court as well as the judgment of the Co-ordinate Bench of this Court, where the demand and acceptance of bribe was not proved.

16. In R. SRINIVASAN's case (Supra), the Co-ordinate Bench of this Court, at paragraph 81, has held that the trial court should have assessed the entire evidence in the light of

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the defence taken up by the accused and their written statement furnished under Section 313, Cr.P.C. If two views are possible in a criminal case, one in favour of the prosecution and the other in favour of the accused, the latter would normally prevail. There is no second thought in respect of the decision of the Co-ordinate Bench of this Court.

17. Here, in the present case, there is no such stand that the accused has not accepted any tainted money, because Rs.15,000/- has been seized from the pant of the accused, and for acceptance of the said money, his hand was washed in sodium carbonate solution, which turned into pink colour, which reveals the acceptance of currency by the accused.

18. The main contention of the learned counsel for the appellant is that the appellant-accused has not at all demanded any amount and there is no entrustment mahazar. In this regard, the learned counsel has also relied upon the notification issued under KCS (C.C.A) Rules, 1957, by the Government of Karnataka in No.DPAR 11 SDE 2002(1), Bengaluru dated 19.06.2002. As per the said notification, the District Health and

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Family Welfare Officer is empowered to suspend the government servants holding 'C' and 'D' group, but not 'A' or 'B' Group officers. The complainant is the medical officer. The power is vested only in the Health and Family Welfare Department.

19. It is also an admitted fact that as per Ex.P.1, the suspension order is issued by the Health and Family Welfare Department. Though the prosecution is not able to show the issue of notification of complainant's suspension, but in the statement under Section 313 of Cr.P.C, the accused himself has admitted that there was complaint against the complainant by the local persons including the officials and in this regard, he has given a report to higher officers and based upon said report, the complainant was suspended. Therefore, statement under Section 313 of Cr.P.C reveals that there is no authority to suspend the complainant, but the District Health Officer being the head of department, can recommend for suspension and also recommend for revocation of suspension order. Based upon his recommendation, the Government or Commissioner can suspend or revoke the suspension order. Therefore, the

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learned counsel for appellant submitted that the appellant- accused has no authority to issue the suspension order. Therefore, the aforesaid notification would not be applicable.

20. As regards the acceptance of bribe as proved by the prosecution as per Ex.P.19 and Exs.P.3 and 5, P.Ws.2 and 3 have stated that the complainant approached the accused for revocation of suspension, and the accused demanded for Rs.15,000/- on 11.08.2005. Subsequently, the accused asked the complainant to go to his place on 12.08.2005. Accordingly, the complainant went to the place of accused where he demanded Rs.15,000/-. Since the complainant was not interested to pay demand, he approached Lokayuktha office. The officer in the Lokayuktha office instructed the complainant to give the amount only on demand by the accused. Accordingly, P.W.2 and P.W.3 went to the office of the accused. When the accused came out from his office and went near parking area, the complainant asked him to send the report, but the accused demanded for money. It is mentioned by P.W.3, in his evidence, that when he asked the accused to get revoke the order of suspension, the accused asked him to

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give the money first. Then, the complainant handed over the same to accused and he kept in his pocket. P.W.2-the trap mahazar witness stated that accused demanded money and the complainant paid the money, which was received by the accused. P.W.2 has further stated that accused has stated "PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". But it is not in corroboration with what was stated by him. Once again, P.W. 2 was recalled for further cross examination, where P.W.2 said that accused demanded amount from the complainant and the accused asked "ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ", but not "£Á£ÀÄ ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr". Learned counsel for the appellant-accused stated that the amount demanded by the accused is made to be discovered in the evidence given by P.W.2 that he has not stated in his admission that the accused has demanded from the complainant '"£Á£ÀÄ ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr", but he has stated that "ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ". Once again, the same is repeated. The evidence of P.W.2 is corroborated with the evidence of P.W.3 that the accused first demanded money. Of course, P.Ws.2 and 3 stated about the conversation of accused at M.O.9, but it is not audible, at the time when it was heard by

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P.W.2, but it was not by P.W.3. The cassette was sent for FSL, but the report is not yet received and hence the prosecution failed to prove the demand. On the other hand, the evidence of P.W.2 and 3 corroborates with each other regarding the demand made by the accused and he has received Rs.15,000/- from the complainant (P.W.3).

21. The Hon'ble Supreme Court in a recent decision in Neeraj Dutta Vs. State (Government of NCT of Delhi) reported in 2022 Live Law (SC) 1029 has held that even if the complainant has turned hostile or for some reason, he was not able to examine the witnesses, the Court can rely upon the evidence of complainant to convict the accused. Paragraph 67 of the said judgment reads as under:

"67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an

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automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness"

testimony if corroborated by other reliable evidence."

22. In the present case, the complainant (P.W.3) has partly turned hostile, only in respect of recording statement, but in respect of demand and acceptance, there is entrustment. The evidence of P.W.2 and P.W.3 corroborates with the evidence of P.W.5. Therefore, I am of the view that the prosecution has succeeded in proving the demand and acceptance of illegal gratification by the accused for doing official favour. The accused has misused the official position which is punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act. The trial Court has considered in all the aspects and has rightly convicted the accused and sentenced to undergo imprisonment.

23. Therefore, this Court cannot interfere with the said judgment of conviction passed by the trial Court Therefore, the

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impugned judgment of conviction and sentence does not call for interference.

24. Learned counsel for the appellant-accused submits that the accused is now aged 77 years and he has retired from service in the year 2005 itself and therefore, prayed for reducing the sentence.

25. Perused the sentence imposed by the trial Court for the offence punishable under Section 7 of PC Act. The trial Court has imposed only 9 months imprisonment and for the offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act, one year imprisonment is imposed in the Unamended Act. Therefore, it is mandate on the part of the Court to impose sentence for a minimum period of six months for the offence punishable under Section 7 of PC Act and one year for the offence punishable under Section 13(2) of the P.C. Act. Therefore, considering the facts and circumstances of the case and by looking into the age of the accused, the order and sentence passed by the trial Court under Section 7 of P.C. Act is to be reduced to six months from nine months, which is the

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minimum sentence. In respect of the sentence passed under Section 13(1)(d) read with Section 13(2) of the P.C. Act, the sentence passed by the trial Court remains the same.

26. Accordingly, the appeal is allowed in part. The judgment of conviction passed by the Court of the Special Judge, Bangalore Urban District, Bangalore in Spl.C.C. No.48/2006 dated 13.07.2011, is hereby confirmed. However, the sentence passed by the said Court under Section 7 of P.C. Act is reduced to six months from nine months, and the sentence passed under Section 13(1)(d) read with Section 13(2) of the P.C. Act, remains the same.

27. The appellant is hereby directed to pay the fine amount, if any, within six weeks from the date of receipt of certified copy of this order i.e., not depicted.

Sd/-

JUDGE GBB/CS List No.: 1 Sl No.: 24