Karnataka High Court
M. Srinivasan vs State Of Karnataka on 14 September, 2023
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NC: 2023:KHC:33339
CRL.A No. 365 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 365 OF 2018 (C)
BETWEEN:
M. SRINIVASAN
SON OF MUNIVENKATAPPA
Digitally ZILLA PANCHAYATH PRESIDENT
signed by N
UMA KOLAR DISTRICT
Location: RESIDENCE:
HIGH JAGAJEEVAN PALYA
COURT OF
KARNATAKA SRINIVASAPURA TOWN
KOLAR DISTRICT - 563 101.
...APPELLANT
(BY SMT.ABHINAYA.K, ADVOCATE FOR
SRI. C H HANUMANTHARAYA, SENIOR COUNSEL
A/W SRI. SANTHOSH S, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA POLICE WING
CITY DIVISION, BENGALURU
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. VENKATESH S ARABATTI, SPL.PP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
07.02.2018 PASSED IN SPECIAL C.C.NO.212/2016 ON THE XXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE, BENGALURU URBAN DISTRICT, (CCH-24) BENGALURU CITY
AND ETC.,
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:33339
CRL.A No. 365 of 2018
JUDGMENT
1. This Criminal Appeal is arising out of the judgment of conviction and order of sentence dated 07.02.2018 in Spl.C.C No.212/2016 on the file of XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru City (CCH-24), wherein the appellant herein has been convicted for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C Act').
2. The rank of the parties henceforth will be referred to as per their rankings in the Trial Court, for convenience.
Brief facts of the case are as under:
3. The appellant was a Public Servant holding the post of President at Zilla Panchayat, Kolar District. Certain allegations had been reported against PW.2 who was working as District Health and Family Welfare Officer at Kolar. It is stated in the complaint that, the appellant herein had to submit the report along with his opinion to the higher officials about PW.2 for necessary action. It is stated in the complaint that -3- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 PW.2 along with PWs.3 and 4 have decided to approach the appellant and requested him to make good report against PW.2 by considering the future of PW.2. Accordingly, on 02.02.2010, they have approached the appellant and requested to issue a good conduct certificate in favour of PW.2 and also requested the accused / appellant to expunge the allegations made against PW.2. As per the averments of the complaint, it is stated that the appellant had demanded Rs.5.00 lakhs as illegal gratification to issue conduct certificate in favour of PW.2. The matter was negotiated between them and it scaled down to Rs.4.00 lakhs.
4. PW.2 and his friends have decided to approach the Lokayukta Police since they were not interested in making payment as illegal gratification. Accordingly, PW.2 has approached PW.8 and lodged a complaint on 06.02.2010. The FIR came to be registered by the respondent Police in Crime No.7/2010 and a trap was arranged to that effect. Accordingly, PW.8 secured PWs.5 and 6 as witnesses to the trap mahazar. PW.8 has conducted pre-trap mahazar in the Lokayukta Police Station and thereafter the Lokayukta Police have decided to proceed to the office of the appellant to hand over the illegal -4- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 gratification. Accordingly, on 06.02.2010, PW.8-Investigating Officer along with PWs.2 to 6 have left the Lokayukta Police Station and reached the office of the appellant at about 02.45 p.m. However, they could not find the appellant in his office. Thereafter, around about 4.45 p.m., again PWs.2 to 5 went to the office of the appellant and they had been informed by the accused that they should take his blank official letter pad and get it typed the conduct certificate which may be favourable to to PW.2. As per the instruction, the conduct certificate was got typed and placed before the appellant for signature. The appellant raised certain issues on the averments of the conduct certificate. Thereafter, PW.2 said to have paid amount of Rs.3.00 lakhs as illegal gratification. It is further stated in the complaint that, the incident was signaled to PW.8. On receiving the said signal, PW.8 and other staff members went inside the chamber of the appellant and seized the currency notes and apprehended the accused. Thereafter, registered a case. After registration of the case, the Lokayukta Police have conducted investigation and submitted the charge sheet.
5. To prove the case, the prosecution has examined 8 witnesses as PWs.1 to 8 and got marked 32 documents as -5- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 Exs.P1 to P32 and also got identified material objects marked as M.O.1 to M.O.25. On the other hand, the appellant got marked two documents as Exs.D1 and D2. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction of the appellant for the offences stated supra. Being aggrieved by the same, the appellant has approached this Court seeking to set aside the judgment of conviction and order of sentence passed by the Trial Court.
6. Heard Smt.Abhinaya.K, learned counsel appearing on behalf of learned Senior Counsel Sri.C.H.Hanumantharaya along with Sri.Santosh.S Nagarale, learned counsel for the appellant and Sri.Venkatesh S.Arabatti, learned Special Public Prosecutor for the respondent - Lokayukta.
7. It is the submission of the learned counsel for the appellant that, the judgment of conviction and order of sentence passed by the Trial Court is perverse, illegal and opposed to the facts and also the evidence on record. Therefore, the same is liable to be set aside.
8. It is further submitted that the Trial Court failed to consider the evidence of PWs.1, 2, 3 and 4 properly and -6- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 recorded the conviction which is against the evidence on record. All these witnesses even though have turned hostile, and not supported the case of the prosecution, and the prosecution has not established the demand and acceptance of illegal gratification, the Trial Court recorded the conviction only on the basis of evidence of panch witnesses, which is against the settled principle of law and therefore, the said conviction is unsustainable.
9. It is further submitted that the Trial Court ignored in considering the certificate which was required to be obtained to substantiate the electronic record as per Section 65-B of the Indian Evidence Act. Unless, such certificate is not obtained, the contents of the documents ought not to have been considered. However, the Trial Court failed to take note of the said aspect and recorded the conviction which is perverse and illegal.
10. It is further submitted that even though the prosecution has produced the voice samples stated to have been recorded by PW.2, the voice has not been identified by the independent witnesses. Therefore, the said voice samples -7- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 assume no significance. In spite of several lacunae regarding demand and acceptance of illegal gratification, the Trial Court recorded the conviction on the basis of assumption and presumption which is alien to the criminal jurisprudence.
11. It is further submitted that PW.5, who is a shadow witness to the incident, has not supported the case of the prosecution in respect of demand and acceptance of illegal gratification. In the absence of evidence with regard to demand and acceptance by the independent witnesses, conviction ought not to have been recorded by the Trial Court. Making such submission, the learned counsel for the appellant prays to allow the appeal.
12. Per contra, Sri.Venkatesh S.Arabatti, learned Special Public Prosecutor for the respondent-Lokayukta vehemently justified the findings recorded by the Appellate Court and submitted that the evidence of panch witnesses and also the voice recorder and digital evidence clearly indicates that, the appellant had demanded illegal gratification to issue a conduct certificate to PW.2, in order to make official favour to him.
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018
13. It is further submitted that the law is well settled that even though the complainant and other witnesses have turned hostile and not supported the case of the prosecution, the conviction can be recorded based on the circumstances which are deducible. It is further submitted that the complainant, who is examined as PW.2, proceeded to the spot with digital camera along with voice recorder which were given by PW.8 and recorded the conversation held between himself and the accused. After the incident got over, those digital camera and voice recorder have been handed over to PW.8. PW.8 extracted the voice recorder and it was played before the independent witnesses and the samples have been identified by the witnesses, therefore, the Trial Court recorded the conviction.
14. It is further submitted that the prosecution has proved the case beyond all reasonable doubt regarding the pendency of work, demand and acceptance of illegal gratification to make official favour and it is also proved that the amount of Rs.3.00 lakhs was recovered in the office of the accused. It is further submitted that PW.6, who is panch -9- NC: 2023:KHC:33339 CRL.A No. 365 of 2018 witness to the incident, was consistent in his evidence that the amount was recovered in the office of the accused. The Trial Court has rightly recorded the conviction after having considered the evidence, both oral and documentary on record and therefore, interference with the said findings may not be necessary. Making such submissions, the learned Special Public Prosecutor prays to dismiss the appeal.
15. After having heard the learned counsel for parties and also perused the findings of the Trial Court, the points which would arise for my consideration are:
(a) Whether the judgment of conviction and order of sentence passed by the Trial Court is justified?
(b) Whether the appellant has made out grounds to interfere with the judgment of conviction and order of sentence passed by the Trial Court?
16. This Court being the First Appellate Court, in order to appreciate both facts and law, it is necessary to re- appreciate the evidence of prosecution witnesses.
17. PW.1 was working as Under Secretary, Department of Panchayath Raj and Rural Development. PW.2 is the
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018 complainant. As per the evidence of PW.2, he along with PW.3 and PW.4 stated to have approached the appellant to get the conduct certificate and to expunge the allegations made against PW.2. For the said act, the appellant stated to have demanded illegal gratification of Rs.5.00 lakhs, however, it was scaled down to Rs.4.00 lakhs. PW.2 was supposed to depose about the payment of the illegal gratification made to the appellant, however, he has turned hostile. The prosecution treated PW.2 as hostile and conducted cross-examination. However, nothing has been elicited to support the case of the prosecution in respect of demand and acceptance of illegal gratification.
18. Similarly, PWs.3 and 4, who stated to have accompanied PW.2, were supposed to depose about the demand and acceptance of illegal gratification. The prosecution has examined them as eyewitnesses to the incident, however, they have turned hostile and not supported the case of the prosecution. The prosecution treated them as hostile and cross-examined them, however, nothing has been elicited to support the case of the prosecution in respect of demand and acceptance of illegal gratification. PW.5 who is stated to be the shadow witness, even though he has stated that he
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018 accompanied PWs.2, 3 and 4 and went inside the chamber of the accused, in the cross-examination, PW.5 has admitted that he was standing outside the chamber and he was not aware about the demand and acceptance of illegal gratification by the appellant / accused. PW.5 being a shadow witness has not supported in respect of demand and acceptance of illegal gratification.
19. Now, it is relevant to refer to the evidence of PW.6 who is a panch witness to the trap mahazar. According to him, he entered inside the chamber of the accused along with PW.8 and others. He has further stated that the Investigating Officer
- PW.8 said to have seized the voice recorder and pen camera under the seizure mahazar drawn and marked as Ex.P7, he said to have affixed his signature on Ex.P7. In the cross- examination, he has admitted that the alleged illegal gratification was found on the ground in the office of the President of Zilla Panchayath. It is needless to say that when the complainant himself has turned hostile in respect of production of digital camera and voice recorder to the Investigating Officer, the evidence of PW.6 in respect of seizure of those two documents appears to be inappropriate and
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018 irrelevant. Therefore, the evidence of PW.6 in respect of seizure of voice recorder and digital camera is unsustainable.
20. To record conviction in respect of the offences stated supra, the prosecution must prove the demand and acceptance of illegal gratification and pendency of work etc. In the present case, though the prosecution stated that there was a demand and acceptance of illegal gratification by the appellant, PWs.2, 3 and 4 have not supported the case of the prosecution and they have turned hostile. Even though they have been subjected to cross-examination, nothing has been elicited to prove the case. Similarly, the shadow witness who is examined as PW.5, has also not supported the case of the prosecution in respect of demand and acceptance. In the absence of proof regarding demand and acceptance of illegal gratification, the conviction in respect of the offences relating to illegal gratification has to be set aside.
21. The learned counsel for the appellant rightly pointed out that the investigating officer has not obtained 65-B certificate to considered the contents of the digital voice recorder and pen camera. It is well settled law that the Court
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018 cannot consider the contents of the digital evidence unless it is accompanied by the certificate. My view has been fortified by the judgment of the Hon'ble Supreme Court in the case of ANVAR P.V v. P.K.BASHEER AND OTHERS1 wherein it is held that, in the absence of the certificate as is required under the provision of Section 65-B of the Indian Evidence Act, the digital evidence is rendered as invalid and cannot be considered. Therefore, the submission of learned counsel for the appellant is sustainable and it may be inferred that the Trial Court has committed error in appreciating the contents of the digital evidence.
22. On careful reading of the evidence of all the witnesses, it appears that PWs.2, 3 and 4 have turned hostile. The evidence of PW.5 is not sufficient to substantiate the demand and acceptance of illegal gratification. The evidence of PW.6 who is a panch witness supported the case of the prosecution in respect of seizure of illegal gratification from the office of the President, Zilla Panchayat / accused. Mere recovery of the amount is not sufficient to implicate the 1 (2014) 10 SCC 473
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018 accused for the offences punishable under Sections stated supra. My view has been fortified by the judgment of the Hon'ble Supreme Court in the case of V.SEJAPPA v. STATE BY POLICE INSPECTOR, LOKAYUKTA, CHITRADURGA2, wherein the Hon'ble Supreme Court held that, mere recovery of the tainted money is not sufficient to convict the accused unless the prosecution proves the case that there was demand and acceptance of illegal gratification by the accused. In the present case, the prosecution has failed to prove the case beyond all reasonable doubt that there was demand and acceptance of illegal gratification by the appellant/accused. Hence, the findings of the Trial Court in recording the conviction appear to be perverse and illegal. Therefore, the judgment of conviction recorded by the Trial Court is unsustainable and the same is liable to be set aside.
23. In the light of the observations made above, the points which arose for my consideration are answered as:
Point No.(a) in the "Negative" Point No.(b) in the "Affirmative" 2 (2016) 12 SCC 150
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NC: 2023:KHC:33339 CRL.A No. 365 of 2018
24. Hence, I proceed to pass the following;
ORDER
i) The Criminal Appeal is allowed.
ii) The judgment of conviction and order of sentence
dated 07.02.2018 passed in Spl.C.C No.212/2016 by the XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru City (CCH-24) is set aside.
iii) The petitioner is acquitted for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE UN/Bss List No.: 1 Sl No.: 46