Karnataka High Court
Sri. V. Raghavendra vs The State on 30 September, 2024
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NC: 2024:KHC:41680
CRL.A No. 326 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 326 OF 2012 (C)
BETWEEN:
SRI. V. RAGHAVENDRA
S/O LATE K. VENUGOPAL
AGED ABOUT 42 YEARS
PRESENTLY WORKING AS
SECOND DIVISION ASSISTANT
OFFICE OF THE SUB-TREASURY
PANDAVAPURA
MANDYA DISTRICT
...APPELLANT
(BY SRI. M.S. BHAGAWAT, SENIOR ADVOCATE FOR
SRI. SATISH K, ADVOCATE)
AND:
THE STATE
Digitally signed BY LOKAYUKTA POLICE
by SHAKAMBARI KARNATAKA LOKAYUKTHA
Location: HIGH POLICE DIVISION
COURT OF
KARNATAKA MYSORE- 570 010
...RESPONDENT
(BY SRI. VENKATESH S. ARATTI, SPL.PP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE CONVICTION AND SENTENCE DT.02.03.2012
PASSED BY THE III-ADDL. SESSIONS & SPL. JUDGE, MYSORE
IN SPL.C.NO.104/2010-CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 7 AND SEC.13(1)(d) R/W
SEC.13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
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NC: 2024:KHC:41680
CRL.A No. 326 of 2012
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal is directed against the judgment of conviction and order of sentence dated 02.03.2012, whereby, the learned III Additional Sessions and Special Judge, Mysuru (for short 'Trial Court') found accused No.1 guilty of committing the offences punishable under Section 7 and 13(1)(d) red with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C.Act') and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.15,000/- with default sentence. Accused No.2 arrayed in the case was acquitted of the charges levelled against him under the same offences.
2. The parties to this appeal are referred to with reference to their rank before the Trial Court for the purpose of convenience.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Pre & Post Trap Proceedings:
3. As per the case of the prosecution, one Raghunathan, the father of the complainant was working as a Store Keeper in the Public Works Department. He retired from service at Yediyuru of Kunigal taluka as an Assistant Store Keeper. His retiral benefits of Rs.1,10,709/- was withheld on the ground that, said Raghunathan had not handed over the charge of the materials stored in the store at the time of his retirement. After the death of Raghunathan, it was ordered that his pensions benefits which was withheld, was ordered to be paid to his legal heirs and to that effect, an order was issued by the Accountant General of Government of Karnataka. In view of the same, the complainant - Nandakishore, his brother Anantharamu and his mother Vidyavathi went to the office of the District Treasury and submitted a letter received from the Accountant General's office. They requested accused No.1 to issue cheques as per the amount sanctioned by the office of the Accountant -4- NC: 2024:KHC:41680 CRL.A No. 326 of 2012 General. It is further stated that, accused No.1 directed them to produce their succession certificate to claim the said amount. Accordingly, by approaching the Civil Court, they obtained succession certificate and submitted the same to the office of the District Treasury. It is alleged that, accused No.1 committed delay in receiving the cheques.
4. It is further alleged by the complainant that, he approached accused Nos.1 and 2 in the office of District Treasury on 15.10.2008 and requested them to issue cheques. At that time, both the accused persons demanded to give Rs.10,000/- as illegal gratification. It is stated that, the complainant has recorded the said conversation. He informed such demand made by the accused persons to his brother and mother and in trun they advised the complainant to approach the Lokayukta police. Accordingly, the complainant approached Lokayukta police and narrated about the demand made by the accused persons and as per the conversation, he could -5- NC: 2024:KHC:41680 CRL.A No. 326 of 2012 arrange only Rs.8,000/- to be paid to the accused persons. It was told by the accused persons that, the complainant can hand over the amount either to accused No.1 or to accused No.2.
5. It is alleged that as the complainant, his mother and brother had no intention to pay illegal gratification therefore, this complainant on 16.10.2008 approached Lokayukta Police Station, Mysuru and submitted a complaint regarding illegal demand of bribe by the accused persons. Based upon that, the Station House Officer of Lokayukta police station registered the crime against the accused parsons and handed over Rs.8,000/- to the police officer with his complaint. Thereafter, the police inspector secured two panchas as witnesses to the pre-trap panchanama and in their presence, the pre-trap panchanama was prepared with serial numbers of currency notes. The Phenolphthalein powder was smeared on the currency notes and the said amount was kept in the shirt pocket of the complainant. He was instructed to handover -6- NC: 2024:KHC:41680 CRL.A No. 326 of 2012 the amount to the accused persons when they demand. Even the respondent - police officer had a demo of pre- trap proceedings by preparing the sodium carbonate solution and fingers of pancha witness were dipped in sodium solution, which turned into pink colour.
6. It is alleged that, the Investigating Officer gave a tape recorder to the complainant with instructions to record the conversation in between the complainant and accused persons and asked the complainant to meet the accused persons. The police inspector took the aforesaid two panchas and his staff to the officer of District Treasury, Mysuru. The complainant and shadow witness went inside the office of the accused persons. They met accused No.1, who was in the office and accused No.2 was not in the office. When the complainant enquired accused No.1 about preparation of cheques and issuance of the same, at that time, accused told him that, cheques are ready and he asked the complainant to give the amount which the complainant has agreed. The complainant tried -7- NC: 2024:KHC:41680 CRL.A No. 326 of 2012 to handover the amount in the hands of accused No.1. At that time, accused No.1 told to have a juice and therefore, all went near the juice shop situated near the office of the of the Deputy Commissioner, Mysuru. The complainant and shadow witness, so also accused No.1 went near the juice shop, at that time accused No.1 asked the complainant to give the amount. Accordingly, the complainant gave the amount to the accused and gave a pre arranged signal to the police. Immediately, the police officer and other panch witness came to the said place and apprehended accused No.1. The police officer disclosed his identity and asked accused No.1 to surrender money and made accused No.1 to come inside the District Treasury office and made him to put his fingers in solution, which turned into pink colour. It was told by the complainant that, he had handed over the amount to accused No.1. The Investigating officer has compared the currency notes as per the pre-trap panchanama and they were in same serial numbers. At the spot itself, he prepared post-trap panchanama, recovered Rs.8,000/- -8-
NC: 2024:KHC:41680 CRL.A No. 326 of 2012 from the possession of accused No.1. He also recovered the tape recorder, arrested accused No.1 and produced him before the Court. Thus, it is alleged that accused persons have committed the offences under the provisions of the P.C.Act as stated above.
7. After completion of the investigation, the Investigating Officer has filed charge sheet against the accused persons for the aforesaid offences. As stated above, accuse No.2 was acquitted and accused No.1 was convicted and sentenced. This is how, now accused No.1 is before this Court challenging his conviction and order of sentence. Being aggrieved by the acquittal of accused No.2, it is submitted that the respondent - State has not preferred any appeal. Thereby, the judgment of acquittal of accused No.2 has attained finality. Proceedings before Trial Court:
8. To bring home the guilty of the accused, the prosecution in all examined nine witnesses as PW.1 to PW.9 and got marked Exs.P1 to P34 with MOs.1 to 16A -9- NC: 2024:KHC:41680 CRL.A No. 326 of 2012 and closed the prosecution evidence. The defence has got marked Ex.D1 to D7. No oral evidence is lead by the defence. On hearing the arguments and on evaluation of the evidence, the Special Court passed the impugned judgment.
Submission of Appellant:
9. The learned counsel for the appellant/accused No.1 with all force submits that, there is no proper evidence led by the prosecution so as to convict accused No.1 in the commission of the crime. He submits that, accused No.1 is innocent and in view of the evidence of PW.4 and PW.6, it is very much clear that, accused No.1 was nothing to do with issuance of cheques to the complainant, his brother and mother. He was not the proper official in the office of the District Treasury, who was entrusted to issue cheques. Therefore, the very prosecution story of demand and acceptance of gratification by accused No.1 cannot be accepted. He submits that, even the sanction order issued by PW.6 is a
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 defective order. In support of his submission, the learned Senior Counsel took me to various evidence spoken to by the witnesses and pointed out contradictions, omissions and discrepancies in the evidence of the prosecution. He submits that mere acceptance of money is not an offence. The ingredient of demand and acceptance has to be proved in accordance with law. He submits that when it is the case of the prosecution that the complainant initially approached accused No.1 and he demanded to pay Rs.10,000/-. Accordingly, the complainant has recorded the said conversation, but no such evidence is produced by the prosecution. Further, it is the case of the prosecution that, when the post-trap was conducted, the Investigating Officer has given him the tape recorder to record the conversation between the complainant and accused No.1. The said tape recorder clips containing the conversation of demand and acceptance of illegal gratification is not produced before the Court so as to believe the story of the prosecution. No attempt was made by the prosecution to secure the said CD to listen the conversation. He further
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 submits that, in view of all these factual features, the presumption, which is available, is not rebutted and the prosecution has failed to prove its case beyond all reasonable doubt. Hence, it is prayed to allow the appeal and set aside the impugned judgment.
Submission of Respondent:
10. As against this submission, the learned Special Counsel appearing for the respondent supported the reasons assigned by the Trial Court in convicting accused No.1. It is his submission that, though several witnesses have given answer in favour of the accused, but nothing worth is elicited so as to disbelieve the version of the prosecution witnesses. He submits that, because of demand of illegal gratification by the accused persons, the complainant at the advise of his brother and mother with an intention not to give any bribe to accused Nos.1 and 2, he filed a complaint before Lokayukta Plice, Mysuru. He submits with regard to pre-trap and post-trap
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 panchanama. According to him, the learned Trial Court was right in convicting accused No.1.
11. In reply to the submission of the counsel for the respondent, the learned Senior Counsel for the appellant denied all the submissions and in support of his argument, he relied upon the judgments of the Hon'ble Apex Court as well as this Court as follows:
i. Mukthiar Singh vs. State of Punjab reported in (2017) 8 SCC 136.
ii. S.Arundath vs. Karataka Lokayukta Police reported in 2020 SCC OnLine Kar 3213.
iii. K. Shanthamma vs. State of Telengana reported in (2022) 4 SCC 574.
iv. Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi) reported in 2023 SCC OnLine SC
280. v. B.Jayaraj vs. State of Andhra Pradesh reported in (2014) 13 SCC 55.
vi. Ms.K.T. Shreeshylaja vs. State of Karataka reported in Criminal Appeal No.20/2017.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 vii. Soundarajan vs. State reported in 2023 SCC OnLine SC 424.
viii. V.V.Ramesh vs. State of Karnataka in Criminal Appeal No.779/2011.
ix. P.Satyanaraya Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another reported in (2015) 10 SCC 152.
x. N. Vijaykumar vs. State of Tamil Nadu reported in (2021) 3 SCC 687.
xi. Digamber Vaishnav and Another vs. State of Cattisgarh vs. (2019) 4 SCC 522.
12. He further submits that, before the trap being conducted, it is the duty of the Investigating Officer to satisfy himself about demand and acceptance of illegal gratification by the accused. When it is missing according to him, the impugned judgment requires interference.
13. The learned Special counsel appearing for the respondent also relied upon the following judgments in support of his submission:
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NC: 2024:KHC:41680
CRL.A No. 326 of 2012
i. P. Sarangapani (Dead) through LR Paka
Saroja v. State of Andhra Pradesh
Judgment dated 21.09.2023 passed by
Hon'ble Supreme Court of India in Crl.A. No.2173/2021.
ii. Neeraj Dutta v. State (Government of NCT of Delhi) (2023) 4 SCC 731.
iii. M. Narsing Rao v. State of Andhra
Pradesh- AIR 2001 SC 318.
iv. Krishna Pillai Shree Kumar v. State of
Kerala -1981 (Supp) SCC 31/AIR 1981 SC
1237.
v. Hazari Lal v. State (Delhi Administration)-
(1980) 2 SCC 390 (Page 9,10,11) AIR
1980 SC 873.
vi. Vinod Kumar v. State of Punjab, (2015)
SCC 220/AIR 2015 SC 1206 (Para
11,12,38,40).
14. In view of the rival submissions of both the side, the only point that would arise for my consideration is:
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 "Whether the Trial Court is justified in finding accused No.1 guilty of committing the offence under the provisions of the P.C.Act as alleged by the prosecution?"
15. At the outset, it is just and proper to know the legal position regarding appreciation of evidence in a case of present nature. In order to succeed, the prosecution is under obligation to prove the following feature:
(i) Demand of bribe amount at the time of trap, its acceptance and recovery of tainted money.
(ii) The demand can be proved by the testimony of complainant as well as shadow witness so also with corroborative materials.
(iii) The presumption as to demand of bribe can also be drawn, if the tainted money is recovered from the possession of the accused, which presumption ofcourse is rebutable under Section 20 of the P.C. Act.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012
(iv) If the accused gives evidence, it has to be scrutinized by the test of preponderance of probability while the prosecution must prove its case beyond all reasonable doubts.
16. Keeping the aforesaid legal position in mind, let me analyze the evidence placed on record by the prosecution whether it is able to prove the guilt of the accused. So far as the documentary evidence is concerned, the prosecution has relied upon number of documents, which were marked in evidence as stated above. In a case of present nature, oral evidence also plays the vital role.
17. PW.1 is non else than the complainant in this case. He corroborates the contents of complaint in his evidence on oath. According to his evidence, on demise of his father, the officer of Accountant General issued the order to disburse of the withheld amount to the legal heirs of father of the complainant. Accordingly, complainant, his mother and brother submitted the orders of the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Accountant General office and requested accused No.1 being a case worker to issue cheques. As per the direction of accused No.1, they also produced the succession certificate issued by the Court. When the complainant approached accused No.1, he went on postponing issuance of cheques on one or other pretext. Both the accused demanded Rs.10,000/- as bribe. Accused Nos.1 and 2 told him that, with great difficulty, they prepared the cheques. When the complainant demanded to issue cheques, accused No.2 told something to accused No.1 and in turn accused No.1 demanded Rs.10,000/- from the complainant. The said demand was made on 15.10.2008. As the complainant was not the one person to pay the said amount, he informed the said demand to his mother and brother, who in turn directed the complainant to approach the Lokayukta police and lodge a complaint. It is further stated by him that, on 16.10.2008, accused No.1 called him on telephone and asked him why he has not came. He also requested the complainant to speak to accused No.2. When he spoke to accused No.2 and expressed his
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 inability to give Rs.10,000/-, accused No.2 agreed to receive Rs.8,000/-. It was told that, said money may be given either to accused No.1 or accused No.2. As the complainant was not inclined to give the bribe money, he lodged a complaint as per Ex.P1 before the respondent - police as per Ex.P1. On registering the said complaint, the Investigating Officer, who prepared the pre-trap panchanama, has recovered Rs.8,000/- from the complainant. He smeared phenolphthalein powder on the currency notes and asked the complainant to keep the same in his pocket. Even the pre trap procedure is conducted. The shadow witness, another panchas, complainant, respondent police went to the office of the accused along with the said smeared currency notes. As per the instructions of the police, the complainant went to the office of accused No.1 and at that time, accused No.1 demanded money. The complainant gave the said tainted money in the hands of accused No.1 and thereafter, gave a pre arranged signal to the Lokayukta police. They came and trapped accused No.1. He handed over the said
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 amount, which was kept in his shirt pocket to the police so also three cheques. Though he states with regard to his conversation with accused No.1 about illegal demand made by the accused persons, but that tape recorder clip is not produced or played before the Trial Court. Even at the time of conducting trap also, the complainant was in possession of tape recorder and as per the instructions of the police, it is expected from the complainant to record the conversation with the accused No.1. The said tape recorder is also not produced by the prosecution. During post-trap, accused No.1 was made to dip his fingers in the sodium carbonate solution, which turn into pink colour. When the said incident has taken place, the treasury officer by name Smt.Lalita was present in the office. Whatever the conversation so recorded, it is not exhibited or played by the prosecution. He identifies the panchanama as per Ex.P4.
18. As PW.1 is an important witness, he has been thoroughly and intensively cross-examined by the defence.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 It is elicited from the mouth of PW.1 about getting of pension book from the treasury office. He admits that, in the said pension book, the outstanding balance pensionary benefit amount is mentioned. Further, it has come in the evidence of PW.1 that, the phone memory card was with him. He states that, he has recorded the telephone conversation, that took place on 15.10.2008 between himself and the accused persons. The said conversation is not produced by him either before the Court or Investigating Officer. He admits that, at office of Treasury either his mother or brother visited. He sates that, he was given instructions with regard to use of tape recorder by the Lokayukta police. In the complaint it is sated that accused No.1 asked the complainant to have a juice, but in the cross-exanimation, he states that, he asked to have a cup of coffee. From the evidence spoken to by PW.1 though, he states so many evidence in the examination-in- chief with regard to illegal demand by the accused, but in the cross-examination, he is not consistent about demand and acceptance of bribe by the accused. It has come in
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 the evidence of other witnesses that, even accused No.2 has demanded to give illegal gratification to him, but no such evidence is spoken to by PW.1 to that effect. If such an evidence is placed on record by the prosecution, it really requires corroboration. The purpose of cross- examination is to elicit truth. Merely because the accused was found in possession of tainted money and the said money was recovered from him, itself is not sufficient to prove his guilt. It is the bounden duty of the Investigating Officer when he received complaint with regard to demand of illegal gratification, he has to enquire and ascertain about such allegation as to whether it is true or false. In this case, no such steps were taken by the Investigating Officer to ascertain about such a demand of money by the accused No.1. Therefore, in view of the above analysis and elaboration of the evidence, if put together, it can be stated that the factum of demand of bribe, which is made against accused No.1/appellant is not duly proved in accordance with law. So to say that, the evidence of PW.1 in its entirety cannot be accepted. It is true that, the case
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 of the prosecution clearly depending upon the evidence of PW.1-complainant. Thus, the evidence of PW.1 unless corroborative in nature, cannot be accepted.
19. Before discussing the evidence of PW.2, it is just and proper to discuss the evidence of a shadow witness, who accompanied the complainant at the time of conducting trap on accused persons. PW.3 - V.M.Chandrashekar being an official of the Commercial Department says in his evidence that, as per the instructions of his superior officer, on 16.10.2008, he went to the office of Lokayukta along with PW.2 at 2.30 p. m. There he introduced himself as an official of Commercial Department and met Lokayukta Officer by name Jayaram. According to his evidence, in the office of the Lokayukta, the complainant was very much present. There, it was informed that, accused Nos.1 and 2 have demanded bribe amount for issuance of cheques in respect of retiral benefits of the father of the complainant. By saying so, the complainant gave Rs.8,000/- as stated by the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Lokayukta Inspector and the said currency notes and there serial numbers were noted by the inspector in the presence of PW.2 and PW.3 in a paper so marked as Ex.P5. It is his further evidence that, the police took out the said currency notes and the police staff smeared phenolphthalein powder to the said currency notes and PW.2 was requested to examine the same. On examining the said currency notes by PW.2, the said currency notes were kept in the shirt pocket of the complainant. Thereafter, PW.2 was asked to frisk his hand in the sodium carbonate solution, which turned into pink colour. To that effect, pre-trap panchanama was prepared and the said solution was stored in a bottle and it was sealed by the Lokayukta Inspector. To that effect a panchanama was prepared as per Ex.P2 and this PW.3 put his signature on the said panchanama.
20. Thereafter, at 3.30 p.m. on that day, all of them along with police staff and panchas went in a departmental vehicle near the Deputy Commissioner's
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Office, Mysuru and parked the said vehicle near the oval ground. The complainant and PW.3 got down from the vehicle and the police gave instructions stating that, on demand by the accused, the complainant was to give the tainted money to the accused and give a pre-arranged signal to the police. Accordingly this PW.3 and complainant went to the office of accused No.1 and then the complainant enquired accused No.1 that whether accused No.2 was there or not. At that time, accused No.1 told that, he had gone to take his lunch and he is yet to come. At that time, the complainant told accused No.1 that he has brought Rs.8,000/- to be given to the accused persons. Accused No.1 told that, accused No.2 had asked him to take the said money on his behalf. Therefore, the complainant told that, he has to give said money there itself. But accused No.1 took all of them to the juice shop situated outside his office building. There, accused No.1 asked the complainant to give the money. Accordingly, the complainant gave the money to accused No.1 and he counted the same and kept in his shirt pocket. Then the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 complainant asked that, where are the cheques. Accused No.1 told that, he has kept the said cheques in his pocket. By that time, as instructed by the Lokayukta police, the complainant gave a pre-arranged signal by rubbing his hands to his head. Suddenly, the police inspector along with others came to towards accused No.1. The complainant showed accused No.1 stating that, it is accused No.1 who has received the money. The police caught hold accused No.1 and was taken inside his office. There, the police informed the District Treasury Officer Smt.Lalitha stating that, they have arrested accused No.1. Thereafter, five plastic glasses were taken and water was put in the said glasses. They prepared the sodium carbonate solution and in one glass, right hand fingers of accused No.1 were frisked and it turned into pink colour. The said solution was stored in a bottle and it was sealed and another glass was used to frisk the fingers of his left hand, but it was not turned into pink colour. Even it is stated by this PW.3 that, at the time of leaving from the Lokayukta office, the complainant has given a tape
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 recorder. On getting the said tape recorder, the police officer examined the same and audio conversation was not recorded by the complainant. Thereafter, the said cassette as well as the bottles were seized by the police and post-trap panchanama was conducted in the presence of the panchas.
21. He furter says that, the said three cheques, which were in possession of accused No.1 were taken and given to the complainant. It is his further evidence that, the police took the photocopies of the said cheques and seized them. Thereafter, they got removed the shirt worn by accused No.1 and it was also seized. Even the portion of the pocket of accused No.1 was dipped into the solution and it was also turned into pink colour. On enquiry with the District Officer with regard to accused No.2, it was told that, he had gone to have his lunch. Thereafter, accused No.1 gave his explanation as per Ex.P6. It was stated by accused No.1 that, said amount was given by the complainant to give it to accused No.2, therefore, he has
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 taken the same. Thus, it is the defence of accused No.1 that, he never demanded any money from the complainant, but it was accused No.2, who demanded the money and on his behalf, he has received the money. As stated supra, accused No.2 was acquitted by the Trial Court and no offence is proved against accused No.2.
22. It is his further evidence that, he went to the office of the Lokayukta for putting his signature on Ex.P3 - panchanama. It was told by the police that, conversation so recorded in the mobile phone of the complainant and tape recorder was reduced into writing, which was recorded on 15.10.2008 and 16.10.2008. It was also told that, the said conversation has to be converted into a CD. To that effect, in the presence of the panchas, the said conversation was reduced into writing as per Ex.P4. It is the further evidence of PW.3 that, he was all along present with the complainant.
23. This PW.3 has been directed with intensive cross-examination by the defence counsel. He states that,
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 his superior officer has not issued any written direction to go to the office of Lokayukta on that day. He further states that, with regard to he visiting the Lokayukta office on 16.10.2008, it is not mentioned in the movement register maintained in his office. Further, he states in the cross-examination that, all of them went near the Deputy Commissioner's office and parked their vehicle near the oval ground. When the panchanama was prepared at Ex.P2, it took about 15-20 minutes. He admits that, it is busy locality where they parked the departmental vehicle near the oval ground. According to him, he does not remember that, he applied leave for five days from 17.10.2008 onwards. He states that, on 17.10.2008 at 10.00 a.m., he went to the office of Lokayukta at 10.30 p.m. He has not enquired with regard to recording of the conversation by the complainant. Further, he states, through out the cross-examination that, he was very much present on 15.10.2008 along with the complainant. He further states that, this PW.3 was a panch witness in another similar case i.e., in Special Case No.4/2009 as
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 called by the Lokayukta police. Further he denied that, he is deposing his evidence as per the say of the police. He admits in the cross-examination that, the solution was prepared in the office of Lokayukta on that day and there, accused No.1.was asked to frisk his right hand fingers. So this evidence of PW.3 shows that at the scene of offence where the raid was conducted, no proceedings of post-trap were conducted. But, the said solution was prepared in the office of accused N.1 and there he was made to frisk his right hand fingers. It is further stated by him that, he has not given any instructions to put a chit on the said bottles seized by the police. From the evidence of PW.3, it is very much clear that, though he accompanied PW.1 at the time of conducting so called raid, but his evidence is quite scanty and he has spoken before the Court as if he is a professional witness. He states that, on 16.10.2008, he has not met accused No.2. Even he has not heard the voice of accused No.2. He deposed ignorance that, on 18.11.2008, the Lokayukta police had recovered the mobile memory card etc. He further states that, when he
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 went to the treasury office on that day, along with the complainant, he did not ask about sitting of accused No.2 in the office of accused No.1. Even the complainant also did not inform about the same.
24. From the evidence of PW.3, it is very much clear that, it was accused No.2, who demanded money from the complainant. Even the trend of evidence spoken to by PW.3 shows that, complainant asked accused No.1 that, he has brought the money and enquired about accused No.2. At that time, accused No.1 told that accused No.2 has gone to take his lunch and he will come later. Therefore, accused No.2 told that, if at all he want to give money, let the complainant to give to him, he will gave the same to accused No.2. Even this PW.3 has deposed ignorance with regard to enquiry by the complainant to others and he cannot say about the recording of the conversation between complainant and accused persons. Thus, the evidence of PW.3 is rather improved version. So to say, his evidence is full of
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 improvements. He being a shadow witness has to speak before the Court that, he was very much present when the raid was conducted and there was demand and acceptance, he must speak to that effect. But evidence of PW.3 being a shadow witness, who accompanied the complainant at the time of alleged demand and acceptance, his evidence is quite contrary to the evidence of PW.1.
25. Now coming to the evidence of PW.2, who is another pancha to Exs.P2 and P3. Though he corroborates the evidence of PW.3 in material particulars, but he went to accused No.1 along with the police staff. According to him, on 16.10.2010 at about 2.20 p.m., as per instructions of his superior officers, himself and PW.3 went to the office of Lokayukta in Mysuru at 2.30 p.m. There, the Lokayukta police told that accused persons are demanding bribe money from the complainant and they were given a copy of the complaint to read, but PW.3 never say so. Further he states with regard to giving of
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Rs.8,000/- to the police by the complainant and writing of serial numbers of currency notes on Ex.P5. According to him, as per the instructions of the police officers, he smeared phenolphthalein powder to the currency notes and kept the same in the shirt pocket of the complainant. But, PW.3 states that, it was a police staff, who smeared the phenolphthalein powder to the currency notes given by the complainant. Even the complainant was given a voice recorder and entrustment mahazar was prepared as per Ex.P2. Thereafter, all of them went in a police jeep to the office of accused No.1. Initially, the complainant and PW.3 went and thereafter, these witnesses went to the D.C. office. According to his evidence, himself and police officers stood outside the Deputy Commissioner's office. The complainant and PW.3 went inside the office. Within five minutes, the complainant, PW.3 and accused No.1 came out from the office. They went near the juice shop and there the complainant took out money from his pocket and gave it to accused No.1. Thereafter, accused No.1 went inside his office and at that time, the complainant
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 gave a signal by rubbing his hands to his head. Thereafter, Lokayukta Police, complainant and accused No.1 went inside the Treasury Office and at that time, accused No.1 was sitting on his chair. It is his further evidence that, complainant showed accused No.1 and Lokayukta police, introduced himself to accused No.1 and told him that, they will arrest him. It is his further evidence that, when the Lokayukta police enquired accused No.1, he gave amount, which was kept in his pocket to the police. Thereafter, the police officer took plastic glasses and prepared said sodium carbonate solution and asked accused No.1 to frisk his right hand fingers in the said solution, which turned into pink colour. Thereafter, the said solution was stored in bottles and he has identified them, which are marked in this case. The police tallied the currency numbers. Shirt of accused No.1 was also seized and the pocket of accused, which was dipped in solution was turned into pink colour. The said shirt is marked as MO.6. There, accused No.1 gave three cheques to the complainant. He gave his explanation as
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 per Ex.P6. Thereafter, they prepared panchanama as per Ex.P3 and came to the Lokayukta police station. It was told by the complainant that, he has recorded the conversation between himself and accused No.1. On 18.11.2008 himself, PW.3, Smt.Lalitha and another were called to the Lokayukta office. There, the conversation was being made to heard by the Lokayukta police and asked these persons to identify the voice. There, they identified the voice of accused Nos.1 and 2 and it was converted into a CD. The said fact of conversation was reduced into writing as per Ex.P4. They also seized the file containing the claim of the complainant as per Exs.P16 and 17. The photographs were taken as per Exs.P10 to P15. It is his further evidence that, he was all along present when the panchanama was prepared.
26. This PW.2 has been thoroughly cross-examined by the defence. He admits that, in the District Treasury office itself, the solution was prepared by the police. The sample of the sodium carbonate solution was kept in the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 bottles. Further he states that, immediately after going to the treasury office, accused No.1 was made to frisk his right hand fingers in the solution. Thereafter, accused No.1 gave the money to Lokayukta police. He denied other suggestions. According to his cross-examination, on 16.10.2008 after completion of the trap proceedings, this PW.2 went to his house. On that day, he did not go to his office. He admits that, in his office, the movement register is maintained. He do not remember that, whether he has mentioned his movement of attending the Lokayukta office on that day or not. He identifies Ex.D2 as the photocopy of the movement register, which do not show about visiting the Lokayukta office by him on 15.10.2008. Further he states that, prior to 16.10.2008, he has not met the complainant and enquired about said demand of money by accused No.1 and 2. Even he has not enquired the complainant as to on what day he visited the accused persons.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012
27. It has come in the evidence of PW.1 that they took almost one year to get the succession certificate. In the mean time, he has visited the office of the treasury so many times. But this PW.2 has not enquired about the same as per his evidence. According to him, in between 2.30 p.m. and 3.30 p.m. Ex.P2 was written by the police and he put his signature at 3.00 p.m. He further states that, said treasury office is a public office and it is a busy locality. Even he deposed ignorance that, after arresting the accused, police had prepared the solution. Even he do not remember that, in the office of the Lokayukta, phenolphthalein powder was smeared to the said notes. He has not deposed about the conversation between the complainant and accused. Even he has not heard the conversation though he was very much present when the trap was conducted. PW.3's evidence is also silent about the conversation between the complainant and the accused.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012
28. Thus, if the evidence of PW.2 is compared with the evidence of PWs.1 and 3, who are the witnesses to the alleged demand and acceptance money, but there evidence is very much silent with regard to demand and acceptance of bribe amount by accused No.1 for himself. Further, it has come in the evidence of this witness that, when they came out from the Deputy Commissioner's Office, PW.3 was 3 ft. away from him. Whether photocopy of the cheques was taken or not, he do not know about the same. Thus, the evidence of this witness is quite contrary to the evidence of PW.1 and PW.3 with regard to demand and acceptance of bribe amount by accused No.1. Though PW.1 to PW.3 have spoken evidence in their examination-in-chief, but in the cross-examination, they have given contradictory evidence.
29. PW.4 - H.Lalitha was the District Treasury Officer at the relevant time. According to her evidence, no proceedings have taken place in her office on that day. She has put her signature to the papers being presented
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 by accused No.1. According to her, the Lokayukta police made accused No.1 to read the papers. The police had been to her office. She states that, some papers typed and it was singed by her at the instance of the police. She has been declared as hostile witness by the prosecution. According to her, as the police gave a threat to her, she put her signature on Ex.P3. Further she states that, accused No.1 was made to put his right fingers in the solution and it was seized. She denied the suggestion so directed to her. She admits that, on 18.11.2008, she was called to the office of the Lokayukta and there, she was made to hear the conversation. But, that conversation was not produced before the Court. She denied the suggestion that, she has given a statement before the police as per Ex.P20.
30. This PW.4 has been thoroughly cross-examined by the defence also. She admits with regard to issuance of cheques and it is mentioned in the computers of her office and said information has been sent to the Head
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Office i.e., NMC Center. She identifies Ex.D1- letter from the Joint Director of Treasuries. She states that, on 15.10.2008 a complaint was filed by one Chandrakanth prepared by cheque section of her office and token was issued. With regard to issuance of cheques to the complainant, Ex.P16 is produced. On scrupulous reading of the evidence of this witness, she denies of conducting of post-trap in the office of District Treasury, Mysuru.
31. PW.5 - S.Rajesh was the Junior Engineer and at the instance of the police, he has prepared the sketch as per Ex.P22. As per the say of the police, he has prepared the same and much reliance cannot be attached to his evidence except for proving that, he has prepared the sketch as per Ex.P22.
32. PW.6 - N.T.Abru was the Director of Treasuries, who has issued the sanction as per Ex.P24. On going through the entire materials placed before him with regard to the prosecution against accused persons, he has issued sanction order. This fact is not denied by the defence.
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 Though he has been cross-examined at length by the defence, nothing worth is elicited so as to disbelieve his evidence. When both accused persons are public servants, it is mandatory on the part of the prosecution to seek sanction as required under Section 19 of the P.C.Act, 1988. Therefore, the sanction to prosecute accused No.1 is a valid sanction as per the case of the prosecution, which is not denied by the defence.
33. PW.7 - Raghavendra was running a mobile showroom and he has converted the conversation so recorded in the mobile phone into a CD. To that effect, his evidence is to be accepted. But, the document with regard to recording is not produced before the Court. His evidence cannot be accepted in the absence of corroborative evidence.
34. PW.8 - D.Jayaram was the police inspector, who registered the crime and set the criminal law in motion. He conducted part of investigation and recorded the statement of the witnesses etc. In the examination-
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 in-chief itself, he states that, accused No.1 gave three cheques to the complainant and he obtained photocopies of the said cheques. Even he states that, when the shirt worn by accused No.1 was dipped into the solution, it turned into pink colour and it was seized. He has recorded the statement of various witnesses. It is elicited in the cross-examination that, the complainant in his complaint has stated that, there was a demand of bribe by the accused persons on 15.10.2008 and thereafter, on 16.10.2008. But there is no recital to that effect in the complaint so filed by the complainant. He had no difficulty to seize the mobile phone or memory card from the possession of the accused. When the complainant came to his office for the purpose of filing a complaint, he has no difficulty to dip the said cheques into the sodium carbonate solution and he has not done so. So also, he had not taken the photographs of the said cheques. On scrupulous reading of the evidence of this witness, it shows that, he has done part of the investigation. He further states that, there was no difficulty to get identified
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 the voice of the accused persons. He do not remember that, whether PW.3 was a panch witness in various cases. PW.8 has deposed so many ignorance before the Court about his own investigation so done by him.
35. PW.9 - Gopalakirshna is a Police Inspector at the relevant time and he has filed charge sheet after collecting the material documents. To that effect, his evidence is to be accepted.
36. On scrupulous reading of the entire oral and documentary evidence lead by the prosecution, it do demonstrate that, though there was a allegation against accused No.1 with regard to demand and acceptance of the tainted money, the main case worker is accused No.2. Accused No.2 is the person, who has been acquitted in this case. There is no evidence placed on record by the prosecution as to how accused No.1 is involved in the alleged crime. When the complainant himself went to the office of accused No.1 and enquired about accused No.2, it was accused No.2, who demanded bribe amount from the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 complainant. But, the whole allegation is against accused No.1. When complainant enquired with accused No.1, it was told that accused No.2 had been to lunch and he has told to take money on his behalf. Therefore, accused No.1 took the complainant to the juice center and there the complainant has voluntarily gave money to accused No.1 and hence, there is no question of any demand by accused No.1. The evidence of the complainant is not corroborative with that of the evidence of PW.3. PW.2's evidence is very much silent about the same. Important witnesses have not supported the case of the prosecution and hence, it can never be stated that, the ingredients of demand and acceptance of bribe amount, which is sine qua non to the case of illegal gratification, then it is hard to believe the evidence of PW.1 to PW.3. The evidence of the prosecution witnesses is full of contradictions and omissions and also improvements.
37. The learned Senior counsel for the appellant/accused No.1 submits that, in view of the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 evidence brought on record by the prosecution, it is hard to believe the story of the prosecution. He submits that, there is grave suspicion in the story as putforth by the prosecution that, it was accused No.1, who demanded the bribe money from the complainant. On clear analysis as rightly submitted by the Senior counsel for the appellant and on elaboration of the evidence, it can be stated that, the prosecution has miserably failed to prove the factum of demand of bribe as against accused No.1 by relying on circumstantial evidence. The allegation regarding acceptance of bribe amount by accused No.1 is primarily based on the evidence of PW.1. PW.3 is a shadow witness and he was away from the complainant at that time. Because of the conversation so spoken to by PW.1 with accused No.1 near the juice shop, which was heard by PW.3 shows, that it was the complainant who told that he has brought the money. At that time, accused No.1 asked him that, as accused No.2 is not there, he has asked him to receive the said money. So the question of demanding the bribe amount by accused No.1 as per the conversation
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 in between PW.1 and accused No.1 as spoken to by PW.3 shows that, there was no demand by accused No.1 as alleged by the prosecution. No doubt, the said amount was recovered from the possession of accused No.1. Mere recovery of tainted money from accused No.1 is not a ground to believe that, really there was a demand and acceptance as alleged by the prosecution.
38. The learned Senior counsel for the appellant also relied upon a judgment of this Court in Criminal Appeal No.648/2011 decided on 28.06.2024, wherein this Court has discussed with regard to succeed in a case of present nature, the prosecution is under obligation to prove the demand of bribe amount before or at the time of trap are to be duly proved in accordance with law. The demand can be proved by testimony of the complainant as well as the complaint made by him and other witnesses. The presumption as to demand of bribe money also can be drawn that, the tainted money so tendered as bribe money is recovered from the possession of accused, which
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 presumption ofcourse is rebuttable under Section 20 of the P.C.Act. Here in this case, the defence of accused No.1 is that, it was accused No.2, who asked him to take money from the complainant and on his behalf, he has taken the same. Evidently, accused No.2 has been acquitted by the Trial Court and no allegations are made against him about demand though the complainant enquired about the presence of accused No.2 on 16.10.2008. That means, the conversation about demand of tainted money was in between accused No.2 and the complainant. Therefore, the presumption which is available is stood rebutted by accused No.1 by cross- examining the persecution witnesses.
39. No doubt, the learned counsel for the respondent - Lokayukta police relied upon various judgments, but the ingredients of offence as stated in the said judgments cannot be justifiably made applicable to the present case. It is submitted that, on reading the evidence of the prosecution witnesses in its entirety, the
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 evidence of PW.1 cannot be brushed aside etc. But, the evidence so spoken to by the witnesses in their cross- examination goes against the case of the prosecution. In view of the judgment of the Hon'ble Apex Court in the case of Neeraj Datta (supra), the demand and acceptance of bribe are the sine qua non in proving the offence, but, in this case, it is not so. So the ingredients of offence stated under the P.C.Act are missing in this case.
40. On scrupulous reading of the entire text of evidence spoken to by the witnesses, PW.1 admits in the cross-examination about bribe money and three cheques were kept in the left shirt pocket of the complainant and said cheques were delivered to him. He further states that, there was a delay of one year in issuing the succession certificate. But he do not remember about the entries so made by the treasury officer on 15.10.2008. Further he states with regard to recording of conversation about demand and acceptance of bribe, but the same was
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 not produced before the Court. PW.2, who is the panch witness though states with regard to handing over of the money to accused No.1 near juice shop, but he states that accused No.1 has taken him to his office. Further, PW.3 is the professional witness as per the case of the defence version in trap cases. Even he deposed ignorance with regard to seizure of mobile memory card. Whereas PW.4 being treasury officer at the relevant time, has put her signature on Ex.P19 because of threat given by the police. Hence, the evidence so spoken to by the witnesses in this case is contradictory. These aspects have not been properly explained by the prosecution. The evidence so discussed above duly establishes that, there is no such demand and acceptance in the manner so alleged by the prosecution. The mere demand itself is not sufficient to establish the case of the prosecution.
41. The learned Senior counsel for the appellant has relied upon various judgments. In the said judgments, it is laid down by the Hon'ble Apex Court and
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 this Court with regard to important ingredients of offence under Sections 7, 13(1)(d) read with Section 13 (2) of the P.C.Act. The prosecution has to establish by proper proof about demand and acceptance of illegal gratification and till that is accomplished, accused should be considered to be innocent as held by the Hon'ble Apex Court in the case of Mukthiar Singh (Supra). So also the other judgments relied upon laid down the similar principles. In case of present nature, it is the duty of Investigating Officer that, on receipt of the complaint, he has to verify that, whether really such a prima facie case is made out by the complainant so as to proceed to initiate legal action against the accused or not. But, in this case, the evidence of PW.8 is very much silent to that effect. He has not done any investigation with regard to the genuineness of the allegations in the complaint.
42. If entire evidence is read in its entirety, the very ingredient of demand and acceptance as alleged by the prosecution is missing in this case. As rightly
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 submitted by learned Senior counsel for the appellant/accused No.1, the prosecution case is full of contradictions, omissions and discrepancies, which is not properly explained by the prosecution and hence, the benefit of doubt has to be extended in favour of the appellant. Therefore, the appeal filed by the appellant/accused No.1 succeeds and the impugned judgment passed by the Trial Court is liable to be set aside. Accordingly, the above point is answered in favour of the appellant and against the prosecution. Resultantly, I proceed to pass the following:
ORDER i. The appeal is allowed.
ii. The judgment of conviction and order of sentence dated 02.03.2012 passed by the III Additional Sessions and Special Judge at Mysuru in Special Case No.104/2010 is hereby set aside. Consequently, the appellant/accused No.1 is acquitted of the charges under Sections
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NC: 2024:KHC:41680 CRL.A No. 326 of 2012 7 and 13(2) read with Section 13(1)(d) of the P.C.Act.
iii. His bail bonds stand cancelled and he is set at liberty.
iv. The fine amount, if any, paid by the appellant/accused No.1 shall be refunded to him digitally after collecting necessary documents.
v. Send back the Trial Court records along with copy of this judgment forthwith to the Trial Court.
vi. Registry to send the operative portion of this judgment to the Trial Court for compliance.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 19 Sl No.: 2