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Karnataka High Court

Laxman D/O. Dundappa Jagadale vs State Of Karnataka on 16 February, 2024

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                                                        CRL.A No. 2676 of 2012



                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                                             PRESENT
                             THE HON'BLE MR JUSTICE RAJESH RAI K
                             CRIMINAL APPEAL NO. 2676 OF 2012
                   BETWEEN:

                   LAXMAN S/O. DUNDAPPA JAGADALE,
                   AGE: 31 YEARS, OCC: SERVICE,
                   R/O: MAMADAPUR, TQ: CHIKKODI,
                   DIST: BELGAUM.
                                                                   ...APPELLANT

                   (BY SRI. , ADVOCATE)

                   AND:

                   STATE OF KARNATAKA,
                   BY LOKAYUKTA POLICE, BELGAUM,
                   REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING, DHARWAD.
                                                             ...RESPONDENT

                   (BY SRI. ANIL KALE, SPL. PP)

                          THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
Digitally signed
by                 CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
SHIVAKUMAR
HIREMATH
Date:              JUDGMENT OF CONVICTION AND SENTENCE DATED 30.04.2012,
2024.02.21
16:04:00 +0530
                   PASSED BY THE LEARNED SESSIONS JUDGE AND SPECIAL JUDGE
                   [PCA], BELGAUM IN SPECIAL CASE NO.111/2010 AND ON
                   PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE ORDER
                   IN THE INTEREST OF JUSTICE AND EQUITY.


                          THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
                   HEARD AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT
                   DELIVERED THE FOLLOWING:
                                 -2-
                                         CRL.A No. 2676 of 2012




                         JUDGMENT

This appeal is preferred by the convicted accused against the judgement of conviction and order of sentence dated 30.04.2012 passed in SC.NO.111/2010 by the IV Addl. District and Sessions Judge and Special Judge (PCA), Belgaum, wherein, the Learned Special Judge has convicted the accused for the offence punishable under Section 7 and 13(1)(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 (for short 'PC Act') and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of three months for the offence punishable under Section 7 of PC Act and he is also sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- and in default of payment of fine he shall further undergo simple imprisonment for a period of two months for the offence punishable under Section 13(1)(d) r/w Section 13(2) of PC -3- CRL.A No. 2676 of 2012 Act. Further, learned Special Judge has also ordered that both the sentences shall run concurrently.

2. The case of the prosecution as presented before the trail Court as borne out from the records are as under:

Complainant-PW.6, Maruti Barji, was residing with his elder brother and sister-PW.11 who were handicapped and receiving handicapped pension of Rs. 400/- in that regard from the Government on monthly basis. Further, PW.6 on receipt of knowledge of enhancement of handicapped pension from Rs.400/- to Rs.1,000/-, filed an application annexed with necessary documents for enhancement of disability pension to the accused who was working as Village Accountant, Mamadapur. The consideration of said application was dragged for one or the other reason by the accused for a period of 3 months and when queried by PW.6, he demanded Rs.6,000/- for processing the same. The prosecution further presented the case that, without any alternative, complainant-PW.6 paid Rs.2,000/- to the accused to get the work done and when accused demanded the balance amount of -4- CRL.A No. 2676 of 2012 Rs.4,000/-, constrained, PW.1 along with his friend approached Lokayukta Police, Belgaum and filed the complaint as per Ex.P10 before PW.12 and PW.12 registered the FIR as per Ex.P.28 for aforesaid offences and subsequently, an Entrustment Panchanama as per Ex.P17 was drawn in the presence of PW.6-complainant, PW.7-shadow witness and PW.8-second pancha and accordingly, trap was conducted by the Lokayukta Police and Investigation officer post trap, conducted the Panchanama and also recorded the statement of all the witnesses so also gathered the necessary documents and laid the charge-sheet against the accused before the Special Court.

3. Post taking cognizance, Learned Special Judge framed charges against the accused for the aforementioned offences and read over the same to the accused. However, accused denied the charges and claimed to be tried.

4. In order to prove the charges leveled against the accused before the Special Court, the prosecution in -5- CRL.A No. 2676 of 2012 total examined 12 witnesses as P.W.1 to P.W.12, so also got marked 36 documents as Ex.P.1 to P.36 and got identified 8 material objects as MOs.1 to 8.

5. After completion of the prosecution evidence, the learned Special Judge read over the incriminating evidence of the material witnesses to the accused as contemplated under Section 313 of Cr.P.C. Though, the accused denied the same, he has chosen not to examine any witnesses. However, he has produced certain documents, in support of his defense. Since, they were not originals/certified copies, they remained unmarked.

6. Subsequently, after assessment of the oral and documentary evidence placed before the Learned Special Judge, learned Special Judge, convicted the accused/appellant for the charges leveled against him and sentenced him as stated supra. The legality and correctness of the said judgment is challenged under this appeal.

CRL.A No. 2676 of 2012

7. Heard learned Senior counsel Sri.P.P.Hegde for Sri. Vinay.K.Naik learned counsel for the appellant and Sri. Anil Kale, leaned Spl. SPP for the Lokayukta.

8. Learned Senior counsel would contend that the prosecution miserably failed to prove the basic requirement of law to prove the charges levelled against the accused, under Section 7 and 13 of the P.C.Act, for the reason that, the prosecution failed to establish that the work of the complainant-PW.6 was pending with the accused as on the date of trap, either by adducing cogent evidence or by placing documents to that effect. It is the case of the prosecution that, PW.6 filed application along with necessary documents for enhancement of the disability pension of his elder brother and elder sister- PW.11 along with the medical certificate before the accused. For approval of the said application, the accused had demanded Rs.6,000/- as such, PW.6 paid Rs.2,000/- initially and since he was unable to pay the balance demanded amount i.e., Rs. 4,000/-, he lodged the complaint before Lokayukta Police as per Ex.P10. But, the -7- CRL.A No. 2676 of 2012 prosecution utterly failed to prove that such application has been filed by PW.6, either before the accused or before the Tahsildar-PW.3. On perusal of the evidence of PW.3, he categorically admitted that, there was no such application filed before him by PW.6 nor he filed the same before the accused who was the then Village Accountant. Though the prosecution relied on Exs.P4 and P5, those documents are dated 02.09.2009 i.e., post conducting the trap, as those documents depict that, no such application had been filed by PW.6 before the accused or before the Tahsildar till 06.06.2009. Further, PW.4-Revenue Inspector also admitted in his cross-examination that no such application has filed by the PW.6 before the accused or in the 'Nemmadi Kendra', which is the competent authority to receive such application. Admittedly, the prosecution has not seized any such documents from the possession or from the office of the accused. Hence, it can be easily concluded that, as on the date of trap, there was no such work pending before the accused. According to the learned Senior counsel, though the prosecution -8- CRL.A No. 2676 of 2012 relied on the evidence of PW.5-said to be the assistant of the accused, to substantiate that accused had received the application from PW.6 and handed over the same to PW.5 and subsequently, after sometime, PW.5 had returned those documents to the accused, the said version of PW.5 cannot be relied for the reason that, PW.4 being the Revenue Inspector has admitted in his cross-examination that PW.5 was no way concerned to the Office of accused or his own Office. Further, P.5 has also, by himself, admitted that, on search conducted by Lokayukta Police, during the course of raid, they did not trace any such application in the office of accused. Further, the accused has produced document dated 28.08.2008 issued by the Chikkodi Tahsildar one Sri.Ghore in his 313 statement which depicts that one Shivananda Siddappa Talavara, was appointed as Assistant to the Village Accountant of Chikkodi with effect from 01.09.2008. Hence, as on the date of trap i.e., 04.06.2009, the said Shivananda Siddappa was working as Assistant to the accused. In such circumstances, it cannot be said that, PW.5 was -9- CRL.A No. 2676 of 2012 working as Assistant to accused at the time of alleged incident.

9. The learned Senior counsel would also contend that, the accused being the Village Accountant of Mamadapura Village, submitted a report to Tahsildar for cancellation of handicapped pension of sister of PW.6 on 09.04.2009. Based on the said report of accused, the Tahsildar, in-turn forwarded a report to the Assistant Treasury Officer, Chikkodi dated 06.10.2009 for cancellation of pension of the sister of PW.6, one Kasavva who examined as PW.11. Enraged by the same, a false complaint has been foisted by PW.6 against the accused at the instance of Lokayukta Police. The learned Senior counsel would also contend that, Doctor of the Government Hospital, Chikkodi, has not issued any certificate from 01.01.2009 till 03.06.2009, either to the sister or the brother of PW.6; as they have not filed any application or appeared before him for examination, to issue the disability certificate. However, it is depicted that, they appeared before the said Doctor only on

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01.08.2009, which is post laying the trap and obtained the disability certificate from the said Doctor. According to the learned Senior counsel, in order to apply for the disability pension, disability certificate is the primary document that has to be annexed along with the application. Since, they both obtained the Disability Certificate only after the incident, it cannot be presumed that they filed application through PW.6, seeking enhancement of the disability pension before the accused. Hence, viewed from any angle, the prosecution failed to prove the basic ingredient of Section 7 of P.C. Act, that, the work of complainant-PW.6 was pending as on the date of the raid. Hence, the learned Senior counsel would submit that, the prosecution failed to prove the basic ingredient in order to convict the accused for the charges levelled against him.

10. The learned Senior counsel would also submit that the prosecution failed to prove the demand and acceptance of the illegal gratification by the accused by leading cogent evidence. On perusal of the evidence of

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PW.12-Investigation Officer, he admitted in his evidence that on the date of alleged trap, though a tape recorder was provided to PW.6, to record the conversation between himself and the accused, but PW.6 failed to record such conversation. Hence, except oral evidence of PW.6, absolutely no other evidence is placed by the prosecution to prove the demand. Even, PW.5, in his evidence, has also not whispered anything about the demand made by the accused to get the work done. Even the evidence of PW.6 is perused, in respect of the demand is concerned, he deposed that, on the date of incident, he contacted the accused and after accused/appellant came out from his Office and reached near public road, he requested PW.6 to give Rs.2,000/-. Per contra, PW.7-shadow witness deposed that the accused demanded the bribe amount outside his Office itself. Hence, there is a contradiction in the evidence of PWs.6 and 7 in respect of the alleged demand made by the accused. As far as the acceptance of the bribe amount is concerned, admittedly, the amount was lying near a bush adjacent to the public road.

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According to the prosecution, after receiving the bribe amount and witnessing the Officials, accused had decamped from the spot and in the midst of escaping he had fell down and at that time, the amount had also slipped from his pocket, which is not justified by leading cogent evidence. Learned senior counsel would vehemence that, it is the defense of the accused that, since he submitted a report to cancel the pension of the sister of PW.6 to the Tahsildar, out of vengeance, PW.6 has lodged a false complaint before the Lokayukta and the Lokayukta Police, in order to trap the accused, visited his office and called him to the public road near the house and forcibly made an attempt to thrush the tainted money in his pocket. At that time, he refused the same and in the scuffle, he fell down and sustained injuries. In spite of which, the Lokayukta Police registered a false case against him. Counsel would contend that, at no point of time, he had received the illegal gratification from PW.6. The learned Senior counsel also contend that PW.5 is a planted witness by the prosecution and he is no way connected to

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the office of the accused, as such his version cannot be relied to draw an inference against the accused. Accordingly, the learned Senior counsel prays to allow the appeal. In support of his contention, learned Senior counsel would rely upon the following decisions -

Sl.No            Case description                    Citation

  1.         State of Punjab v. Madan          (2013) 14 SCC
             Mohan Lal Verma,                  153
  2.         Punjabrao v. State of             (2002) 10 SCC
             Maharashtra,                      371
  3.         T. Subramanian v. State           (2006) 1 SCC 401
             of T.N.,
  4.         N. Vijayakumar v. State           (2021) 3 SCC 687
             of T.N.,
  5.         K. Shanthamma v. State            (2022) 4 SCC 574
             of Telangana,
  6.         Chandrasha V State of             Crl.A.No.200105/
             Karnataka                         2015        dated
                                               16.02.2022
  7.         B N Swamy V State of              Crl.A.No.1339/20
             Karnataka                         10          dated
                                               27.03.2015
  8.         Manohar            Dundappa       Crl.A.No.100066/
             Kabbur    V       State  of       2015
             Karnataka                         dated18.01.2024



       11.     Per   contra,     the       learned     Special     Public

Prosecutor contended that the prosecution successfully proved the basic ingredients charged against the accused by adducing cogent evidence. On perusal of the evidence

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of PW.6, he categorically deposed that, he filed necessary application for enhancement of the disability pension of his sister and brother before the accused who was a Village Accountant of Mamadapura Village. It is to process the same, the accused had demanded illegal gratification by PW.6. This evidence of PW.6 corroborates with the evidence of PW.5, who is none other than the assistant of the accused working in his Office. PW.5 deposed that, PW.6 filed an application to the accused and the accused handed over the same to him and after sometime, he, in- turn returned the said applications to accused. Hence, according to the learned SPP, the prosecution has proved the pendency of the work of PW.6, before the accused. As far as the demand and acceptance of the illegal bribe amount is concerned, the evidence of PW.6-complainant coupled with the evidence of PW.7-shadow witness and PW.8-co-pancha corroborates to each other and they categorically deposed that on the date of incident i.e., on 04.06.2009, they initially visited the Office of Lokayukta and entrustment panchanama as per Ex.P17 was

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conducted in their presence and subsequently, Lokayukta Officials applied phenolphthalein powder to the currency notes and handed over the same to PW.6 and thereafter, PW.6 contacted the accused and as per his say, they all went to the office of the accused and the accused demanded the bribe amount and PW.6 handed over the same to him and thereafter the Lokayukta Police caught hold of the accused and seized the tainted money. Pursuantly, Lokayukta Officials washed the hands of the accused, which turned into pink colour. Which very much envisages that accused had accepted the bribe amount as per his demand. Further, they have also deposed that a trap panchanama was drawn in the Tahsildar Office of the accused as per Ex.P21. Nevertheless, the prosecution also proved that, during the course of trap, the accused made an attempt to escape from the clutches of Lokayukta Police and fell down on the road near the bush and sustained injuries and got treated before PW.2-Doctor, who deposed to that effect and issued the Wound Certificate. In such circumstances, learned SPP would

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contend that, the prosecution has proved the charges levelled against the accused beyond all reasonable doubt.

12. Learned SPP would further contend that the defense of the accused is not probable one and quite contradictory for the reason that, initially, the accused stated that PW.6 demanded RTC pertaining to his father's property and the accused provided the same and thereafter while he proceeding to Tahsildar Office the accused thrusted the currencies in his pocket. Whereas, during 313 Statement, he stated that, since he submitted a report to cancel the disability pension of his sister- PW.11, out of vengeance, the trap was conducted. Hence, the defense of the accused cannot be believable. With these grounds, he prays to dismiss the appeal.

13. Having heard the learned Senior counsel for the appellant/accused so also the learned SPP and on perusing the records made available before me, the point that would arise for my consideration is:

"i. Whether the Judgment under this appeal suffers from any perversity or illegality?

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ii. Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of PC Act?"

14. As both points are inter-linked to each other, they are taken up together for consideration. Accordingly, on careful perusal and re-appreciation of the evidence placed by the prosecution before the trial Court, I find that;

PW.1-Vijaya, the then Assistant Executive Engineer, drawn spot ketch as per Ex.P1 PW.2-Dr. Gurulingappa, Medical Officer, issued report as per Ex.P3-Wound Certificate and gave his final opinion that, the injuries are simple in nature and can be caused on coming in friction with hard and rough substance.

PW.3- Ramesh Desai, the then Thasildar, deposed that, no application for enhancement of handicapped pension filed by PW.6 was pending in his office and to verify the same he has perused the inward and outward register maintained by his office. He has further deposed

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that, since 2007, "Nemmadi Kendra's "are being set-up with the purpose of receiving applications pertaining to handicapped pensions. He has issued report as per Ex.P4 and Ex.P5 and testified that the accounts of brother and sister of PW.6 comes under the jurisdiction of Chikkody Sub-treasury. Further, he has also issued Ex.P6-certficate, certifying the work attendance of the accused.

PW.4-Mandanaiah Hiremath, the then Revenue Inspector, deposed that, no application regarding handicapped pensions pertaining to PW.6 are pending for consideration in his office and they have been neither received in the 'Nemmadi Kendra' nor from the office of the accused. He has further deposed that, as on the date of ride, Lokayukta Officials have searched for the applications filed by PW.6 both in his office and also in the office of the accused and they have not found any application pending in their offices. He has identified Ex.P7-copy of the tappal book, which was recovered by the Lokayukta Police during the trap proceedings. He has further deposed that PW.5 is not employed in his office

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and also he is not aware as to the fact that PW.5 is employed in the office of the accused. He has partly turned hostile to the prosecution case and denied the alleged statement given by him before Lokayukta Police as per Ex.P9 and stated that PW.5 is no where connected to the office of the accused and his office and denied his involvement in the search of documents in the office of accused and himself, by the Lokayukta Police.

PW.5-Shrishail Sarapure, independent circumstantial witness, deposed that, he has worked under accused for a period of one year as his writer, was writing the records pertaining to inward register and accounts register. He has deposed that, PW.6 had approached accused regarding the application for handicapped pension and on the day of the incident, he rushed to the spot post alarmed from the noises outside the office and witnessed that, accused being injured, was lying down near the bush, 50-52 meters away from the office and Lokayukta Officers were also present near the incident and he also witnessed the money on the ground, where the accused had allegedly

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fell down. Further, the officials washed the hands of the accused in chemical solution and the water turned to pink color and as such, they took away the injured accused for treatment, to Government Hospital. He has also deposed that he know PW.6.

PW.6.Maruti Barji, Complainant and younger brother of PW.11, reiterated the versions of Ex.P10 and he further deposed that, post his complaint, on 04.06.2009, an entrustment punchanama was drawn by the Lokayukta Officials in the presence of witnesses PWs.7 and 8 as per Ex.P17 and the tainted moneys i.e, 2 notes of 500/- denomination and 10 notes of Rs.100/- denominations was mixed in phenolphthalein solution, post him giving those currencies to the Lokayukta Officials and accordingly, the same was kept in his shirt on a suggestion that, the same should be given to the accused on demand of bribe. As such, he also identified the photographs taken during the course of drawing the Ex.P17 as per Exs.P11 to 16. Subsequently, he contacted the accused to know about his whereabouts and as per his

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say, along with Lokayukta officials and PWs.7 and 8 went to the office of the accused. He further deposed that, he reached to the office of the accused and went inside the office and when enquired regarding the pending application, accused along with him came outside the office near the road and demanded Rs.2,000/- from him and consequently, he handed over the same to the accused and he deposed that, consequently, when the accused collected the same from him, he enquired the accused as to the pending application and accused informed him that, he will visit the office of PW.3 and confirm him the status of application. Accordingly, when the accused was returning to the office, he witnessed the Lokayukta Police officials and being afraid, when he tried to escape, fell on the ground 50-60metres away from the place where he had handed over the money to the accused. Subsequently, the Lokayukta Police caught hold of the accused. Further, post him falling down, the tainted money had also fallen on the ground and accused picked the same and inserted in his pocket and as such, the

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Lokayukta officials, seized the tainted money from his pocket and when his hand was inserted in chemical solution, it turned into pink color. As such, they took the accused to the hospital for treatment and thenceforth, again took him to the office of PW.3, at around 6 pm and searched the applications submitted by PW.6. However, the applications were untraced in the office. Thereafter, officials also prepared the trap panchanama as per Ex.P21 and siezed the tainted clothes of the accused as per M.O.1. Further, he has also identified the photographs taken at the time of trap as per Exs.P18 to 20 and 22. Additionally, he has also deposed that, Lokayukta Officials recorded the statement of PW.5 in PW.3's office, who admitted the factual aspects of submitting the application by PW.6 and thereafter took the accused along with them.

PW.7- Gurilingayya Hiremath-Shadow witness, veterinary officer, according to him, on the date of incident, he was called to Lokayukata Office by Pw.12 as per Ex.P23 and he deposed that, on the said date, he was explained as to the contents of Ex.P10 and he witnessed

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that Lokayukta officials received the money from PW.6 and mixed it with the chemicals and handed it over to PW.8 and in-turn PW.8 kept the same in the shirt pocket of PW.6 and guided him as to indicating by gestures once accused received the bribe amount, post demand. He is also a witness to the entrustment panchanama as per Ex.P17. Further, he would submit that, himself, PW.6 and along with officials went to chikkodi from Belgavi. Pursuant to which, PW.6 contacted the accused to know about his whereabouts and accordingly, on receipt of such information from the accused, they all reached the office of PW.3 situated in Chikkodi. Further, he deposed that, PW.6 went inside the office of the accused and came out of the office along with accused and at that time, he witnessed that, accused demanded the bribe amount from PW.6 and PW.6 handed over the tainted money to the accused and accused counted the money and inserted them in the trouser pockets and as such the Complainant- PW.6 made the gesture to the Lokayukta Police and they, on such gesture, rushed towards the accused to trap him

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and witnessing the same, the accused tried to flee away from the spot and fell down 50 meters away from the alleged place of incident near the bush and tainted money also fell down from his pocket near the bush. Further, he deposes that, Lokayukta police caught hold of the accused and also recovered the tainted money from the ground and handed over to PW.8 to count the same and as such, they also conducted the chemical test on the hands of the accused and the hands of the accused turned into pink color. He identified the tested chemical containers seized by the Lokayukta police as per M.Os 3 and 4. The money collected by the Lokayukta Police from the ground near the bush was marked as M.O.5. He deposed that, thenceforth, accused was taken to the hospital for the treatment and pursuant to which, accused was against brought back to the office of PW.3 and a search for the documents were conducted and application pertaining to the application filed by PW.6 was untraced and as such, his hands were again tested in chemical solutions as per Ex.P6 and the same turned into pink color. He is also

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witness to the trap punchanama as per Ex.P21, wherein, the cloths of the accused as per M.O.1 was also marked. Further they also searched for the applications in the office of the accused and the same was not found and accordingly, Lokayukta Police also seized the Tappal book as per Ex.27. He has also identified the photographs at Exs.P18 to 20 and Ex.P22.

PW.8- Sanjeevkumar Yadav, Co-pancha to the entrustment mahazar, reiterated the version of shadow witness-Pw.7 and deposed, on the date of incident he had been to the police station of the respondent/police and witnesses the tainted money so also the mahazar drawn as per Ex.P17 and accompanied PW.6, shadow witness and Lokayukta officials in their vehicle and reached the office of accused at Chikkodi and he witnessed that, both PW.6 and 7 went inside the office of the accused and when they came outside the office along with the accused, PW.6 gestured him and Lokayukta officials and on his gesture, when Lokayukta police rushed to catch the accused, being alarmed, accused tried to flee away from the spot, but, fell

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down near the bush, 50 meters away from the office and as such, he also witnessed that the tainted money had also fell down on the ground near the bush and on inference made by the authorities, he picked up the tainted money from the ground and when examined, he found that, those were the tainted money and as such, he also identified the chemical examination samples as per M.O.3 and M.O.4 so also the clothes of the accused as per M.O.6. Further, he deposed that, as accused was injured, he was taken to the hospital and after first aid he was again brought to the office of PW.3 and the application filed by PW.6 was searched in the office of both PW.3 and accused and enquiries was also made with PW.5 and he stated that, he know accused and he was working as assistant to accused when PW.6 had approached the accused for enhancement of handicapped compensation to their elder sister and brother and also had filed an application in that regard. Further, he is a co-panch to the trap mahazar as per Ex.P21, drawn at the office of PW.3 and subsequently, he also deposed that the accused had

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also tendered his voluntary statement as per Ex.P25, denying the demand and acceptance of bribe itself. Further, he also deposed that when the documents were untraced they took the accused along and left to Belgaum.

PW.9- Dr.ravishankar, the then, Commissioner, issued sanction order as per Ex.P27 PW.10-Yallapa Hanji, scribe of the complaint-Ex.P.10 and also accompanied the complainant-Pw.6 to the office of the Lokayukta Police.

PW.11- Kasavva Barji, elder sister of PW.6, on behalf of whom PW.6 had presented the application, deposed that, she has not filed the application for enhancement of handicapped pension but, her brother PW.6 had informed her as to filing an application for enhancement of the same. She further deposed that, she is unaware of the accused and also the documents produced along with the application and as such, she deposed that, she lacks memory as to the date of examination conducted in the hospital to assess their disability percentage and also the

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date on which such certificate came to be issued to her and her brother. She has also conceded to the fact that she is retired Anaganwadi teacher.

PW.12- Wilson Ugargol, Investigation officer, received the complaint from PW.6 and on receipt of the complaint registered the FIR against the accused for the above mentioned offences in Crime No.6/2009 as per Ex.P28 and also conducted the entrustment panchanama in the presence of witnesses and panchas as per Ex.P17 wherein, M.O.2 and M.Os.7 to 9 were seized. Further, he along with PW.6 and panchas visited to the office of the accused and laid the trap and seized the tainted money and articles and has draws trap panchanama as per Ex.P21 in the presence of witnesses. He, post trap, recorded the statement of all the witnesses and after obtaining the records from the concerned authorities laid the charge-sheet against the accused for the aforementioned offences.

15. Before proceeding with the case on hand, I would refer to the decision of the Hon'ble Apex Court in

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Neeraj Dutta v. State (NCT of Delhi), reported in (2023) 4 SCC 731, wherein, the Hon'ble Apex Court while summarizing the principles and scope of Section 7 and 13 of PC Act has held in paragraph No. 88 as under-

"88. What emerges from the aforesaid discussion is summarised as under:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-

giver without there being any demand from the public servant and the latter simply accepts the offer and receives illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

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(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe- giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe- giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any

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other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

16. Keeping in view the norms by the Constitutional Bench of the Hon'ble Apex Court, if the case on hand is carefully perused as to the evidences tendered before the Special Court, PW.6 being the Complainant in this case deposed that he being the younger brother, had applied for enhancement of handicap pension to his sister and brother before the accused and on this account, accused had demanded for a bribe of rs.6,000/- from PW.6 and

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PW. 6 though had paid Rs. 2,000/-, was unable to pay the balance demanded amount of Rs.4,000/- and as such, he approached the Lokayukta police and filed the complainant seeking for necessary action against the accused and Lokayukta officials has proceeded with the compliant and drawn entrustment mahazar as per Ex.P17 in the presence of Panchas and travelled to the office of accused and laid the trap on the gesture of PW.6 and recovered the tainted money of Rs.2,000/- and has drawn the Trap Mahazar as per Ex.P21 in the office of PW.3 post taking accused for treatment at Government Hospital and taken the custody of the accused.

17. Further, in order to prove the pendency of work with the accused, prosecution has primarily relied upon the evidence of PW.6 to PW.8 and also the evidence of PW.5. If the evidence of PW.6 as discussed supra, juxtapose the evidence deposed by PW.3- Thasildar who has categorically deposed that, since,2007 application of such kind are not received in the office of Village Accountant, as, in order to receive the same, "Nemmadi

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Kendras" are situated in every Tahsiladar office and as such, he has deposed on verification of inward and outward register maintained in his office and also 'Nemmadi Kendra' situated in his office that, he has not found any documents or the applications filed by the PW.6, seeking for the relief as described and he would also submit that, it is that, post receipt of such applications from the 'Nemmadi Kendra's, they will be sent to Revenue Inspector and also village Accountants for verification through internal channel. Hence, in the absence of records being filed in the 'Nemmadi Kendra' there arises no such occasion to forward it to the Village Accountant internally as deposed by PW.6. Additionally, the prosecution in order to prove this aspect has relied upon the evidence of PW.5 so also the trap Mahazar drawn as per Ex.P21, to state that the application was filed before accused and work was pending as on the date of trap. To enunciate this position, if the evidence of PW.5 is perused, I observe that, PW.5 in his evidence, has pictured himself as the assistant working in the office of

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the accused and he has also deposed that, he had witnessed PW.6, as he had come to meet the accused; some weeks prior and handed over the application to the accused who in-turn, had handed over the same to PW.5 and thereupon, PW.5 had handed over the same to the accused back. But, as contended by the learned Senior counsel, so also keeping in view the evidence of both PWs.3 and 4 are concerned, if the evidence of PW.5 is examined, the prosecution has utterly failed to prove the fact that, PW.5 is the employee, working under or in the office of the accused. For the reason that, PW.3 has clearly deposed in his evidence that, though he has witnessed PW.5 outside his office, within the vicinity, he is neither the staff of PW.3 nor the staff of accused; working in their respective offices. Further, this version put forth by PW.3 corroborates to the evidence of PW.4 who has also deposed in a similar manner. In order to buttress his stand, learned senior counsel would persuade this Court to a G.O dated 28.08.2008 bearing No. VaTaNa/50/08-09, copy of which was also produced before the trial Court and

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would submit that, almost a year prior to the date of trap itself, PW.3 has passed an order appointing one Sri. Shivanand Siddappa Talawar as assistant to accused in view of the death of earlier assistant who happens to be father of Shivanand Siddap Talawar, who was working in the same place. As such, from this evidence, it is evidently clear that, PW.5 is no where connected to the office of the accused. Hence, in the absence of such crucial connection of PW.5 to the office of the accused, the version of the prosecution that PW.5 has witnessed the application received by the accused from PW.6, inside the office of the accused, seems too farfetched truth.

18. Nextly, learned Senior counsel has also drawn the attention of this Court to page 199 of the paper book submitted before this Court and submits that, in order to file an application for enhancement or seeking handicapped pension, handicapped certificate is a much required document. As such, he would submit that, if the certificate issued by the Chief Medical Officer, Government Hospital, Chikkodi, who is the competent authority to

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issue the disability certificate is seen, then he has clearly stated in the certificate at page 199 supra, that both PW.11 and her brother has neither approached nor filed an application before him, during the period of 01.01.2009 to 03.06.2009, requesting the Chief Medical Officer for grant of disability Certificate by examining them and Chief Medical Officer has further certified that, they have only obtained such certificate, on 01.08.2009, which is evidently post conducting trap. Hence, it is amply clear that, as on the day PW.6 is alleging that he had filed an application before the accused, there existed no disability certificate in the possession of PW.6. In countenance to this position, PW.11 has also deposed in her evidence that, PW.6 has informed her about the enhancement made by the Government and had also informed her that he will be filing an application in that regard. Further, though she has deposed that she do not remember the date, she has accepted that in order to apply for the enhancement, they have approached the Government Hospital for examination and obtaining the disability certificate.

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Further, it is also accepted by all the official witnesses so also the shadow and panch witness that the Lokayukta officials, post trap has searched for the application filed by PW.6 in the office of PW.3 and also in the office of accused, the efforts of which has turned totally futile. Admittedly, no documents were seized from the office of accused. Moreover, though PW.3 has deposed that, there are instructions to the village accountants, to receive the applications of such kind and forward it to 'Nemmadi Kendra', if the applicants are illiterate. Admittedly, as deposed by PW.3 in his evidence, office of the accused is situated behind the office of PW.3, i.e. the competent authority to receive such applications, through 'Nemmadi Kendra' situated in his office building. In such circumstances, it is difficult to believe the fact that, PW.6, leaving behind the office of PW.3, approached accused requesting to forward his application despite of the fact, as deposed by the Tahsildar and Revenue Inspector that, accused had submitted a report against awarding handicapped pension to PW.11. As she being a retired

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Anganwadi teacher, belong to above poverty line category. It is on these aspects, I find no merit in the case put forth by the prosecution that there was work pending with the accused relating to PW.6 as on the date of trap.

19. Further, in order to prove the demand and acceptance of tainted money by the accused, the prosecution has relied mainly upon the evidence of PWs.6 to 8, who are the complainant, shadow witness and panch witness to the case on hand. Pw.6 in his evidence deposed that, on the date of trap i.e., on 04.06.2009, PW.6 along with shadow witness and panch witness so also Lokayukta officials had visited the office of the accused and PW.6 went inside the office of the accused and brought him outside near the road and then, handed him the tainted money of Rs.2,000/- as demanded by the accused on the road and accused inserted the same in his trouser pocket and then PW.6 gestured the officials and post being alarmed, accused try to flee away from the spot and as such, he fell down around 50-60 meters away from the place where he had received the bribe, near the bush and

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as a result of falling, the tainted money has also fallen near the bush and as such, he again inserted it inside his trouser pocket and the Lokayukta officials seized the tainted money from the said place. On the other hand, PW.7 deposed that, he had waited outside the office of the accused and PW.6 and accused came out of the office and there itself, PW.6 handed over the tainted money to the accused on his demand and further on gesture made by PW.6, when the officials tried to escape from the place, he fell down near the bush 50-60 meters away and the said tainted money had also fallen down from his trousers near the bush and the officials seized the money from the ground itself and confiscated them. Queerly, PW.8 has deposed that, on the day of trap, when they reached the office of the accused both PW.6 and PW.7 went inside the office of the accused and came outside the office of the accused and accordingly, PW.6 gestured the officials and when they tried to catch hold of accused, alarmed, accused tried to flee away and fell near the bush 50-60 meters away and as a consequence of which, the tainted

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money had also fell down and the police seized the tainted money and handed it over to him to check the details as recorded earlier. In addition to, if the evidence deposed by the Investigation Officer-PW.12 is looked into, he has also deposed that PW.6 and PW.7 together went inside the accused office and post acceptance of bribe money when accused tried to flee away and fell down near the bush. He further deposed that, as per the instructions of PW.6, they have recovered the tainted money from the left pocket of the shirt of the accused. Further in his cross-examination he would also say that, the place where the accused had fell down was near the 'Banyan Tree' and the tainted money were recovered from the said spot. As such, there are total contradictions in the evidence of PW.6,7,8 and 10 as to the place where the demand and acceptance took place, as to who accompanied the complainant-PW.6 to the office of the accused so also the place where the accused had fell down. There are also contradictions in their evidence as to who witnessed the incident and who has acted upon the gesture of PW.6. Contradictions also

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stretch to the aspect of place from where the recovery of money is being made. Admittedly, the conversation between the accused and PW.6 are not recorded by PW.6 in spite of handing over the tape recorder with the instruction by the Investigation officer-PW.12. Moreover, the trap panchanama Ex.P21 was conducted after delay of nearly 45 minutes. Hence, I am of the view that, the case put forth by the prosecution, in order to prove the demand and acceptance of the bribe amount by the accused is nothing but seems much like an anecdote which does not corroborate either with the evidences of witnesses or the documents and as such, I hold this contention in favour of the appellant/accused is concerned.

20. Moreover, if the decision passed by the Co- ordinate Bench of this Court in Chandrasha Vs The State of Karnataka through Lokayukta Police, Kalaburgi in Crl.A.No. 200105/2015 decided on 16.02.2012 is seen;

"17. The co-pancha is examined as PW.3. He also supported the case of the prosecution. Other material witnesses are PW.4 the Second Division

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Assistant of SubTreasury, Afzalpur and PW.5 is the Accounts Head, SubTreasury, Afzalpur. However, in their evidence, Ex.P.8 came to be marked along with annexure. On considering Ex.P.18, a sum of `43,323/- being the bill has already been passed on 29.07.2009 itself, as could be seen from the endorsement made on the bills itself. These two documents were seized by the Lokayukta police in the presence of panchas and it is relied on by the prosecution themselves. As could be seen from Ex.P.18 coupled with the oral testimony of PWs.4 and 5, it is seen that as on the date of trap i.e., 05.08.2009 there was no work pending of the complainant with the accused inasmuch as he has already passed the bills on 29.07.2009. When the bills are already been passed on 29.07.2009, question of making a demand on 05.08.2009 and the accused accepting the illegal gratification in a sum of `2,000/- cannot be countenanced in law.

***

20. In view of the legal principles enunciated in A.Subair's case (supra), since the work was not pending before the accused as on the date of trap, the important ingredient to attract and complete the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act cannot be sustained. Accordingly, the finding recorded by the learned trial Judge needs to be interfered with....."

(Emphasis supplied by Me) Juxtapose the case on hand, as discussed supra, if the evidence of PWs.3,4 and 11 are seen collectively with the documents produced by the appellant/accused before the trial Court, same draws an inference in the mind of the

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Court that, as on the date of trap i.e.,04.06.2009, there was no work relating to PW.6 was pending with the accused or in the office of the accused and it is also clear that, the accused is not the competent authority to receive such applications. Under such circumstances, in the absence of prosecution proving the pendency of work, the complaint-Ex.P10 so also the evidence of PW.6 as to the demand and acceptance of the bribe amount is concerned, does not effectively draw an opinion beyond all reasonable doubt in the mind of this Court, as against the accused.

21. Further, the judgement relied by the learned SPP i.e., Vinod Kumar Garg v. State (NCT of Delhi), reported in (2020) 2 SCC 88, wherein, the Hon'ble Apex court has held that, minor contradictions in the evidences of witnesses, are bound to occur and they are natural during the course of evidence and the witnesses are also not required to recollect and narrate the entire version with the photographic memory, notwithstanding the hiatus and passage of time. However in the case on hand, the prosecution failed to prove the basic ingredient of demand

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and acceptance so also the pendency of work by leading cogent evidences and as such, the judgement cited by the SPP would not be of much avail to the case of the prosecution to prove the guilt of the accused, keeping in mind the principles enunciated by the Hon'ble Apex Court in the case of Neeraj Dutta v. State (NCT of Delhi) supra.

22. In such circumstances, as discussed supra, I am of the view that, since the prosecution has failed to prove the, pendency of work and also basic ingredients of demand and acceptance of the illegal gratification by the accused, the prosecution has failed to prove the charges leveled against the accused. Accordingly, the Judgment rendered by the Sessions Court, in my opinion calls for interference and consequently, I answer the point raised above in affirmative and negative respectively and proceed to pass the following:

ORDER

(i) The appeal is allowed;

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(ii) judgement of conviction and order of sentence dated 30.04.2012 passed in SC.NO.111/2010 by the IV Addl. District and Sessions Judge and Special Judge (PCA), Belgaum, for the offence punishable under Section 7 and 13(1)(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 is hereby set-aside; The appellant/accused is acquitted for the charges leveled against him under Sections 7 and 13 (1)(d) r/w. 13(2) of P.C.Act, 1988;

(iii) The bail bonds executed by the accused stands cancelled;

(iv) The fine amount paid, if any, by the accused shall be refunded to the accused on proper identification.

Sd/-

JUDGE Svh/-