Karnataka High Court
D.K. Ravi vs The State Of Karnataka on 18 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.319/2024
BETWEEN :
D K RAVI
AGED ABOUT 48 YEARS
S/O LATE S KARIGOWDA
FDA IN EXCISE COMMISSIONER'S OFFICE
MYSURU.
R/AT: D.No.2949, 5TH CROSS
3RD STAGE, DATTAGALLI
KANAKADASA NAGARA, MYSURU.
PERMANENT ADDRESS:
DEGGANAHALLI VILLAGE
K.R.NAGARA TALUK
MYSURU DISTRICT.
... APPELLANT
(BY SRI SHIVAJI H MANE, ADVOCATE)
AND :
THE STATE OF KARNATAKA
REPRESENTED BY LOKAYUKTA POLICE
MYSURU.
REPRESENTED BY:
THE SPECIAL PUBLIC PROSECUTOR
KARNATAKA LOKAYUKTA
2
M.S.BUILDING, AMBEDKAR VEEDHI
BANGALORE - 560 001.
... RESPONDENT
(BY SRI LETHIF B, SPL .P.P)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 31.01.2024 ON THE FILE
OF THE III ADDITIONAL SESSIONS JUDGE, MYSURU IN
SPL.C.No.242/2020, CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 13(1)(a) R/W
13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, THIS DAY SHIVASHANKAR
AMARANNAVAR J, DELIVERED THE FOLLOWING;
JUDGMENT
1. This appeal is filed by the appellant - accused praying to set aside the judgment of conviction and order on sentence dated 31.01.2024 passed in Spl.C. No. 242/2020 by the III Additional District and Sessions Judge and Special Judge, Mysuru, whereunder this appellant - accused has been convicted for offence under Section 13(1)(a) read with Section 13(2) of the Prevention of 3 Corruption Act, 1988 (hereinafter for the sake of brevity referred to as the `P.C. Act') and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.25,000/- and in default, to undergo simple imprisonment for a period of six months.
2. Case of the prosecution is that the appellant - accused being a public servant while working as a First Division Assistant in the office of Excise Commissioner, Mysuru, collected illegal gratification of Rs.40,000/- on or before 01.08.2013 from the owners of Bar and Wine shops of Mysuru city and District to renew the license and hid the same in the files of his office almirah and committed an offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act. The trial Court framed charges for offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act. In order to prove the charge the prosecution examined 7 witnesses as P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.45 and M.O.1. The statement of the appellant - 4 accused has been recorded under Section 313 of Cr.P.C. The appellant - accused has examined his brother - Manjunath D.K. as D.W.1. The trial Court after hearing arguments on both sides has formulated points for consideration and after appreciating the evidence on record has passed the impugned judgment of conviction and order on sentence.
3. Heard arguments of learned counsel for appellant - accused and learned Spl.P.P. for respondent.
4. Learned counsel for appellant - accused would contend that there were no complaints against any officials of office of Excise Commissioner, Mysuru and complaint filed by P.W.1 is suo motu complaint. Name of appellant has not been shown as an accused in the FIR or in the averments of the complaint. The accused shown in the FIR are officials working in the office of Excise Deputy Commissioner. On that day P.W.1 found officials possessing cash in excess of cash declared in the cash declaration 5 register by the officials working the office of Excise Commissioner, Mysuru. The officials gave their explanation and P.W.1 who was not satisfied with the explanation of this appellant - accused for keeping Rs.40,000/- in his cupboard, continued investigation against him. Non- declaration of cash in the cash declaration register does not itself constitute an offence and it is a mere irregularity. The accused gave explanation as per Ex.P.7 stating that said amount of Rs.40,000/- was given by his brother - Manjunath D.K. for his Gallblader operation. Said explanation has been established by adducing evidence of his brother Manjunath D.K. - D.W.1. The words used in Section 13(1)(a) is `habitual' and no person has been examined who is alleged to have given bribe to this appellant - accused. The appellant - accused is assigned with duty of receiving applications for renewal of bar license and forward the same to the concerned officer. In the charge sheet it is alleged that the appellant - accused has 6 collected illegal gratification of Rs.40,000/- from the bar owners. There is no evidence on record to establish the said aspect of colleting illegal gratification as alleged. It is P.W.1 who is alleged to have received information, registered the case and recorded the statement of the witnesses and P.W.7 has filed charge sheet after receipt of sanction order. P.W.1 ought not to have continued the investigation after filing the complaint as he becomes interested in the case. C.W.24 to C.W.32 and C.W.45 to C.W.54 are bar owners/restaurant owners. Out of them only C.W.52 has been examined as P.W.4 who has not stated regarding collection of any bribe by any of the officials in Excise Office, Mysuru. Other witness, namely, bar owners/restaurant owners who have been cited in the charge sheet have not been examined to prove the allegation of habitually accepting bribe by the appellant - accused from the bar owners/restaurant owners. The conversation alleged to have taken place between P.W.1 7 and Manjunath D.K. - brother of the appellant - accused has not been recorded. P.W.1 has deposed that he had put the phone conversation in the loud speaker and the panchas heard the same. But, P.W.2 - one of the panchas has denied the said aspect of putting the phone in loud speaker and he hearing the conversation between P.W.1 and Manjunath D.K. - brother of the appellant - accused. P.W.3
- Excise Inspector who has produced some documents in his cross-examination has sated that there is no delay in work of renewal of bar license. Even though sanction is marked by consent, the prosecution has to establish that the sanctioning authority has applied his mind and therefore it is not for the Court to consider whether the sanctioning authority has applied its mind or not. Evidence of D.W.1 - Manjunath D.K. -brother of the appellant - accused establishes the explanation given by the appellant - accused in Ex.P.7 at the time of raid. The prosecution has not examined any witnesses to indicate that the appellant - 8 accused is in the habit of receiving bribe for renewal of license. The appellant - accused has no authority to issue license and he was only receiving applications and processing the same and placing them before the concerned authority who accords permission to renew license. Without considering all these aspects learned Special Judge erred in convicting the appellant - accused by the impugned judgment which requires interference by this Court. With this he prayed to allow the appeal.
5. Per contra, learned Spl.P.P. appearing for respondent would contend that P.W.1 has sought permission as per Ex.P.1 of P.W.5 and after P.W.5 accorded permission he registered complaint as per Ex.P.3 and obtained Ex.P.6 search warrant and conducted raid in the office of Excise Commissioner, Mysuru and drawn mahazar
- Ex.P.29 wherein he found Rs.40,000/- in between files in an almirah which is in the custody of the appellant - accused. The explanation given by appellant - accused that 9 his brother gave Rs.40,000/- on 01.08.2013 has been cross-verified by P.W.1 by making phone call in which Manjunath D.K. - brother of appellant - accused denied that he gave cash to the appellant - accused. The appellant - accused has declared cash of Rs.300/- on 01.08.2013 and Rs.900/- on 02.08.2013. The appellant - accused is found possessing cash in excess of cash declared. The Bank statement of appellant - accused which is at Ex.P.34 does not contain any entry of his brother transferring any amount to his account. In the circumstances a presumption under Section 20 of the P.C. Act has to be drawn. The appellant - accused has not placed any documents on record to show that he has to undergo Gallblader operation. The appellant - accused has been entrusted with the work of receiving applications for renewal of bar licenses and processing them under the work entrustment order - Ex.P.45 pertaining to Mysuru Range - I. The trial Court has rightly held that the appellant - accused has failed to 10 explain the source of cash of Rs.40,000/- that he was possessing and rightly convicted him for offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act. On these grounds he prayed to dismiss the appeal.
6. On considering the grounds urged and on perusal of the impugned judgment and the trial Court records, the following point arises for my consideration.
Whether the trial Court erred in convicting the appellant - accused for offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act?
7. My answer to the above point is in the affirmative for the following reasons:
The appellant - accused was working as a First Division Assistant in the office of the Excise Commissioner, Mysore and it is alleged that on or before 01.08.2013 he collected illegal gratification of Rs.40,000 from the owners of bar and wine shops, Mysore city and District to renew license and hid the same in the files of his office almirah and 11 committed offence alleged against him. P.W.1 - Police Inspector of Mysore Lokayukta on receiving credible information about the officials of the office of Excise Commissioner, Mysore collecting illegal gratification for renewal of the bar and wine shops license, prepared a report - Ex.P.1 and obtained permission of P.W.5 -
Superintendent of Police, Karnataka Lokayukta, Mysore Division which is at Ex.P.2 and filed complaint as per Ex.P.3 and prepared FIR as per Ex.P.4. P.W.1 secured panchas and conducted raid on the office of Excise Commissioner, Mysore on 02.08.2013. During raid he found excess of cash than cash declared in the cash declaration Register of officials working in the office of the Excise Commissioner, Mysore and prepared raid mahajar as per Ex.P.29. Other officials gave explanation and accepting the same, no action was initiated against them. P.W.1 was not satisfied with the explanation - Ex.P.7 given by the appellant - accused and proceeded with the investigation against appellant -12
accused. Appellant - accused, at the time of raid itself, gave his oral explanation that amount of Rs.40,000/- which was found in the almirah in between the files is cash given by his brother Manjunath D.K. - D.W.1 for his Gallbladder operation. He also gave said explanation in writing which is at Ex.P.7. P.W.1 during that raid mahazar made phone call to Manjunath D.K. - D.W. 1, the brother of appellant -
accused to get his explanation as to whether he had given cash of Rs.40,000/- to his brother appellant - accused. In the phone conversation P.W.1 is alleged to have got information from D.W.1 that he had not given any cash to the appellant - accused on 01.08.2013 and he had transferred Rs.20,000 + Rs.20,000 to the account of appellant - accused sometime earlier. On the basis of the said explanation got from D.W.1, P.W.1 completed major investigation and P.W.7 took up further investigation. He collected sanction order from the competent authority as per Ex.P.37 and filed charge sheet.13
8. The appellant - accused has not disputed the seizure of Rs.40,000/- from the almirah belonging to him in his office under mahazar - Ex.P.29. The appellant - accused gave explanation for the said cash found in his almirah. The appellant - accused has declared cash of Rs.300/- on 01.08.2013 and Rs.900/- on 02.08.2013. As excess cash was found in the possession of the appellant - accused than the cash declared in the cash declaration register, P.W.1 has presumed that it is illegal gratification received by him for renewal of license. The appellant - accused has examined D.W.1 - Manjunath D.K. who is his brother who is said to have given cash of Rs.40,000/- to him. D.W.1 - in his chief-examination has deposed that he has given cash of Rs.40,000/- to his brother appellant - accused on 01.08.2013 in his office for Gallbladder operation.
9. Learned counsel for respondent would contend that as excess cash than the cash declared in cash declaration register was found with the appellant - accused, 14 a presumption is required to be drawn under section 20 of the P.C. Act. Said presumption drawn under section 20 of the PC Act is a rebuttable presumption.
10. Mere recovery of money from the accused is not enough to entitle the drawing of a presumption under Section 20 of the Act. But whether the recovery of money coupled with other circumstances leads to conclusion that accused received gratification from some person the Court would certainly be entitled to draw a presumption under Section 20 of the P.C. Act. No doubt, there was recovery of money from the accused but it is not enough for the prosecution to satisfy with that only.
11. In the case of Punjabrao vs. State of Maharashtra,(2002) reported in 10 S.C.C.371 : 2004 S.C.C.(Cr) 1130 the Hon'ble Supreme Court has observed as under:
"It is too well-settled that in a case where the accused offers an Explanation for receipt of the alleged amount, the question that arises for 15 consideration is whether that Explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
12. In the case of V.D. Jhingan. Vs. State of UP., reported in A.I.R. 1966 S.C. (2000) 1762 : 1966 Cr.L.J. 1357 the Hon'ble Supreme Court has observed as under:
"We are accordingly of the opinion that the burden of proof lying upon the accused under Sec.4 (1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, the Court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him."16
13. In the decision in the case of S.L. Goswami vs. State of M.P., reported in A.I.R. 1972 S.C. 716: 1972 Cr.L.J. 511 the Hon'ble Supreme Court has observed as under:
"In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf 17 probabalises the plea he will be entitled to the benefit of reasonable doubt."
14. What standard of proof is necessary in rebuttal required under the case in which a statute provides that the guilt of the accused, the Hon'ble Apex Court in the Kaliram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773 has held as under:
"There are certain cases in which statutory presumption arises regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true even 18 though it is not positively proved to be true the accused would be entitled to acquittal."
15. Similar view was also expressed by the Hon'ble Apex Court in the case of Mansingh Vs. Delhi Adm., reported in AIR 1979 SC 1455 wherein it is observed as under:
"While dealing with the question of presumption under Sec.4 of the Act it has been laid down that the accused is not required to prove his defence by the strict standard of proof beyond reasonable doubt but it is sufficient if he offers an Explanation or defence which is probable and once this was done presumption under Sec.4 stands rebutted."
16. It is clear from the above decisions that burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and even in the strict liability cases wherein the burden is shifted to the accused, the accused can discharge his burden of preponderance of probability and no burden is cast upon him to prove his contention 19 beyond reasonable doubt. It is sufficient if accused offers all probable explanation or defence and that strict standard of proof is not necessary.
17. The appellant - accused has not disputed that Rs.40,000/- found in the almirah belongs to him. He gave explanation that it is given by D.W.1 - Manjunath D.K. on 01.08.2013 for his Gallblader operation. To establish the said explanation, his brother Manjunath D.K. has been examined as D.W.1 and he has deposed that on 01.08.2013 he went to the office of Excise Deputy Commissioner, Kuvempu Nagar, Mysuru and gave Rs.40,000/- to his brother D.K. Ravi (appellant - accused) for his Gallbladder operation. The said explanation was also given in writing by the appellant - accused at the time of raid and it is at Ex.P.7.
18. As per evidence of P.W.1, he made phone call to D.W.1 - Manjunath D.K. to get explanation as to whether he had given Rs.40,000/- to his brother - appellant - 20 accused. As per P.W.1 he made phone call to D.W.1 - Manjunath D.K. and put the call on speaker and it was heard by the panchas where in Manjunath D.K. - brother of appellant - accused denied of giving Rs.40,000 to his brother. In Ex.P.29 - mahazar, the said aspect of putting the phone call conversation in loud speaker is mentioned. P.W.2 is a pancha to the said mahazar - Ex.P. 29 and he in his cross-examination has stated that the Investigating Officer made a phone for the younger brother of the appellant - accused and asked him whether he had given money to his elder brother and he do not remember whether the call was on loud speaker at that time. He further deposed that what the brother of the appellant - accused spoke to the Investigating Officer was not heard by him. The very said aspect goes to show that the call was not put on loudspeaker and what was the conversation between P.W.1 and Manjunath D.K. - D.W.1 and brother of appellant - accused over phone has not been heard by 21 P.W.2 - one of the pancha to Ex.P.-29. Another pancha - CW 3 has not been examined by the prosecution.
19. The call record details of the phone of the Investigating Officer, i.e., P.W. 2 is at Ex.P.33 which indicate that there were 3 outgoing calls to the mobile number of D.W.1 - Manjunath D.K. and all the 3 conversations are more than 100 seconds in different timings. P.W.1 has not deposed regarding he making 3 phone calls to D.W.1 - Manjunath and what was the conversation that took place in all the 3 calls. The total duration of the said calls is 370 seconds (110 + 130 +
130). Even P.W.2 has not stated regarding 3 phone calls made by P.W.1 to D.W.1 - Manjunath D.K. - brother of appellant - accused. Said Manjunath D.K. - brother of the appellant - accused has been cited as C.W.4 in the charge sheet but he has not been examined by the prosecution. Said Manjunath D.K. who has been examined by the appellant - accused as a defence witness, i.e. D.W.1 has 22 deposed regarding he giving cash of Rs.40,000/- to his brother i.e., appellant - accused on 01.08.2013 and he has also deposed that he received a phone call and somebody asked him whether he had given Rs.40,000/- and the person who made the phone call did not disclose his identity and therefore he had not given entire explanation to him at that time. Nothing material has been elicited in the cross examination of D.W.1 to disbelieve his testimony.
20. Section 13(1)(a) of P.C. Act reads thus:
"13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7;"
21. The word used is public servant is said to commit offence of criminal misconduct if he habitually 23 accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as mentioned in Section 7. The term `gratification', `legal remuneration' and `motive or reward for doing' have been explained in explanation `b', `c' and `d' of Section 7 of the P.C. Act which reads thus:
"(b) "Gratification". The word "gratification" is not restricted to pecuniary gratification or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position 24 to do, or has not done, comes within this expression."
22. The word used in Section 13(1)(a) of the P.C. Act is `habitually accepts or obtains or agrees to accept'. Said term `habitually accepts' itself indicate that the prosecution has to prove that the public servant is in the habit of accepting illegal gratification.
23. The work assigned to appellant - accused is processing of the bar license renewal for Range-I. He is not the authority who has to grant permission for renewal of license. The evidence on record does not indicate any single incidence of the appellant - accused accepting illegal gratification for renewal of license. C.W.23 to C.W.32 and C.W.45 to C.W.54 are bar owners/restaurant owners who had applied for renewal of license. Out of them C.W.52 has been examined as P.W.4. P.W.4 has deposed that none of the officials of office of the Excise Commissioner demanded any bribe for renewal of license. The other witnesses cited 25 to have applied for renewal of bar and restaurant licenses have not been examined. Even on perusal of their statements, there is no allegation of any demand by any of the officials of the Excise Department for renewal of license.
24. P.W. 3 - Excise Inspector in his cross-
examination has admitted that there are no complaints against this appellant - accused and there is no delay on his part in doing his work. If there is any collection of any illegal gratification by the appellant - accused, that ought to have been stated by any one of the bar owners or restaurant owners who had applied for renewal of license stating that they had paid illegal gratification for renewal of license. Even in the charge, it is alleged that appellant - accused collected illegal gratification of Rs.40,000/- from owners of bar and wine shops of Mysuru city and District to renew the license and kept the same in his office almirah. The said aspect has not been established by the prosecution. Mere possession of money in excess of what is 26 disclosed in the cash declaration register does not establish that appellant - accused had collected illegal gratification from the owners of bar and wine shops of Mysore town and District. More so, the evidence of D.W.1 coupled with explanation given by the appellant - accused as per Ex.D.7 itself establishes how he got that amount of Rs.40,000/- and for what purpose. It is not material whether appellant - accused has placed on record as to whether he suffered from Gallbladder stone and he required operation and he subsequently underwent that operation or not. Therefore, the appellant - accused has established his explanation by preponderance of probability. The trial Court has failed to consider the said aspect and erred in convicting the appellant - accused for offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act.
25. Learned counsel for appellant - accused has argued that even though the sanction is marked by consent, it is for the prosecution to prove that at the time 27 according sanction the sanctioning authority had applied its mind.
26. Learned counsel for respondent submitted that the order of sanction has been marked by consent and it is at Ex.P. 37. A perusal of Ex.P.37 indicates that it is not an order by a competent authority according sanction to prosecute the appellant - accused for offense under Section 13(1)(a) read with Section 13(2) of the P.C. Act. On perusal of the documents marked on prosecution side it is seen that the said sanction order does not find a place. Ex.P.37 is not the sanction order but an order to keep the appellant - accused under suspension. Considering all these above aspects learned counsel for appellant - accused has made out grounds for setting aside the impugned judgment of conviction.
27. In the result, the following;
ORDER
i. The appeal is allowed.
28
ii. The impugned judgment of conviction dated 31.01.2024 passed in Spl.C. No. 242/2020 by the III Additional District and Sessions Judge and Special Judge, Mysuru, is set aside.
iii. The appellant - accused is acquitted of offence under Section 13(1)(a) read with Section 13(2) of the P.C. Act .
iv. The appellant-accused is entitled for refund of fine amount deposited by him.
Sd/-
JUDGE LRS.