Karnataka High Court
The State Of Karnataka vs Sri M. Narayanaswamy on 22 April, 2024
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NC: 2024:KHC:15919
CRL.A No. 747 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.747 OF 2014
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR
LOKAYUKTA POLICE STATION
MANDYA.
...APPELLANT
(BY SRI B. S. PRASAD, SPL.P.P.)
AND:
1. SRI M. NARAYANASWAMY
S/O. LATE D. MARIYAPPA
AGED ABOUT 61 YEARS
KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION
LIMITED, MANDYA
RESIDING AT NO.91
1ST MAIN, IST STAGE
GAYATHRIPURAM
MYSURU-571 313.
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA 2. SRI B. S. RAMESH
Location: HIGH
COURT OF S/O. LATE SIDDOJIRAO
KARNATAKA AGED ABOUT 61 YEARS
KARNATAKA FOOD & CIVIL SUPPLIES
CORPORATION LIMITED, MANDYA
RESIDING AT NO.155,2ND CROSS
BANDIGOWDA LAYOUT
MANDYA.
...RESPONDENTS
(BY SRI A. S. MAHESHA, ADVOCATE FOR R-1;
SRI H. M. MURALIDHAR, ADVOCATE FOR R-2)
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NC: 2024:KHC:15919
CRL.A No. 747 of 2014
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C PRAYING TO: (a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 29.3.2014 IN SPL.
CASE NO.41/2009 PASSED BY THE COURT OF THE PRL. SPECIAL
JUDGE AT MANDYA ACQUITTING THE RESPONDENTS OF THE
OFFENCES P/U/S 7, 13(1)(d) R/W SEC.13(2) OF THE P.C. ACT; (b)
SET-ASIDE THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL
OF THE OFFENCES P/U/S 7, 13(1)(d) R/W SEC.13(2) OF THE ACT
DATED 29.3.2014 IN SPL. CASE NO.41 OF 2009 PASSED BY THE
COURT OF THE PRL. SPL. JUDGE AT MANDYA, BY ALLOWING THE
APPEAL; AND (c) CONVICT AND SENTENCE THE RESPONDENT FOR
THE AFORESAID OFFENCES U/S 7, 13(1)(d) R/W SEC.13(2) OF THE
ACT, WITH WHICH THEY HAVE BEEN CHARGED AND TRIED IN
ACCORDANCE WITH LAW.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 02.02.2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
The appellant - State has preferred this appeal under Section 378(1) and (3) of the Code of Criminal Procedure Code, 1973 (for short 'Cr.P.C.') to set aside the judgment of acquittal dated 29.03.2014 passed by the Principal Special Judge, Mandya (for short 'trial Court'), in Special Case (PC Act) No.41/2009, wherein, the respondents/accused Nos.1 and 2 have been acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act'). The appellant also prayed to convict the respondents for the aforesaid offences. -3-
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2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the complainant - State and respondents are accused Nos.1 and 2.
3. The brief facts of the prosecution case are as under:
Accused No.1 M. Narayanaswamy and accused No.2 Sri B. S. Ramesh were working as Manager and Assistant Manager, respectively at Karnataka Food and Civil Supplies Corporation Ltd, Mandya (hereinafter referred to as for short, 'Corporation'). On 15.06.2007, the complainant, PW1 A. R. Manjunath, the proprietor of Nandi Transport entered into a contract-Ex.P3 with the Corporation for transportation of kerosene lifting from I.O.C. Mysore and to deliver to various wholesale and retail outlets of Corporation situated at Rural and Urban areas of Mandya District. Accordingly, PW.1 lifted kerosene from I.O.C. Mysore and delivered to the outlets of -4- NC: 2024:KHC:15919 CRL.A No. 747 of 2014 Corporation for the month of January 2008, hence, he submitted a bill Ex.P4 to the Corporation for payment.
4. It is the case of prosecution that, when PW.1 submitted the bill- Ex.P4 and requested to honour the bill for payment of Rs.73,443.96/-, accused No.1 being the public servant demanded a bribe of Rs.10,000/- for sanction of the bill and issuance of cheque in favour of PW.1. But, PW.1 declined to pay the bribe amount to accused No.1 and hence, he approached the Karnataka Lokayukta Police, Mandya (hereinafter referred to as 'Lokayukta Police' for short), on the same day, viz., on 04.02.2008 at 11:30 a.m. and lodged the complaint. Hence, the Lokayukta Police registered the case in Crime No.2/2008 against accused No.1 for the offences punishable under Section 7(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act' for short). On the same day, at about 5.15 p.m., accused No.1 demanded and accepted Rs.10,000/- bribe amount from PW.1 by directing him to -5- NC: 2024:KHC:15919 CRL.A No. 747 of 2014 pay such amount to accused No.2, B.S.Ramesha, the Assistant Manager, who in-turn, received the bribe amount from PW.1, which is other than legal remuneration and thereby, committed criminal misconduct by obtaining the illegal gratification. Thereafter, a trap was laid, accused persons were secured, seized a sum of Rs.10,000/- and seizure mahazar was conducted. Thereby, accused Nos.1 and 2 have committed offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the PC Act.
5. The Investigating Officer who recorded statement of witnesses, collected service particulars of accused persons, obtained sanction, sent seized articles to Forensic Science Laboratory and after completion of investigation, filed the charge sheet against the accused persons for the aforesaid offences.
6. After filing of the charge sheet, the Special Court took cognizance of the offences under Section 190(1)(b) of Cr.P.C. for the aforesaid offences against the accused -6- NC: 2024:KHC:15919 CRL.A No. 747 of 2014 persons and after hearing the parties on both side, framed charges for the aforesaid offences against the accused persons and read over to them, they pleaded not guilty and claimed to be tried.
7. The prosecution to bring home the guilt of the accused persons, examined in all 4 witnesses as PWs.1 to 4 and in all 32 documents were got marked as Exs.P1 to P32 and material objects were marked as MOs.1 to 12.
8. The trial Court after closure of the evidence, recorded the statement of accused persons under Section 313 of Cr.P.C. by explaining the incriminatory materials appearing in the prosecution evidence to the accused persons, they denied all the suggestions and the case of accused persons was of total denial. The accused persons did not enter the witness box and hence, the defence evidence was taken as nil. For the defence, Marriage invitation card was marked as Ex-D1. -7-
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9. The trial Court having heard both the parties framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 04.02.2008 at about 10.00 to 11.30 a.m. at the office of KFCSC Ltd Mandya the accused No.1 M. Narayanaswamy the then District Manager of KFCSC Limited Mandya being a government public servant demanded PW-1 A.R. Manjunatha to pay bribe of Rs.10,000/- for sanction of transportation bill for the month of January 2008 and thereby committed an offence punishable under Section 07 of Prevention of Corruption Act, 1988 as alleged?
2. Whether the prosecution proves beyond reasonable doubt that, on the very same day of 04.02.2008 at about 5.15 to 5.30 p.m. the accused No.1 further made a demand to pay bribe of Rs.10,000/- in connection with passing of transportation of kerosene bill for the month of January 2008 and thereby committed an offence punishable under Section 7 of P.C. Act, 1988 as alleged?
3. Whether the prosecution proves beyond all reasonable doubt that on the very same day of 04.02.2008 at about 5.15 p.m. the accused No.1 M. Narayanaswamy, District Manager of KFCSC Limited Mandya being a public servant on demand accepted Rs.10,000/-
bribe amount from PW-1 A. R. Manjunatha by directing to pay to accused No.2 -8- NC: 2024:KHC:15919 CRL.A No. 747 of 2014 B.S. Ramesha Assistant Manager of KFCSC Ltd. Mandya and accordingly at the direction of accused No.1, accused No.2 received the bribe amount of Rs.10,000/- from PW-1 and thereby both the accused being the public servants committed an offence under Section 13(1)(d) of the P.C. Act, 1988 punishable under Section 13(2) of the P.C. Act, 1988 as alleged?
4. What is the final order in respect of the disposal of MOs.1 to 12 marked in this case?
10. The trial Court based on the above evidence, acquitted the accused persons for the aforesaid offences. Aggrieved by the judgment of acquittal passed by the trial Court, the Complainant- State has preferred this appeal.
11. The Special Judge's Court records were called for and the same are placed before this Court.
12. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the Special Court records.
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014
13. The learned Special Public Prosecutor appearing for appellant-Lokayukta Sri B.S. Prasad submitted that the judgment passed by the Special Court is contrary to the facts of the case; the Special Court has not properly appreciated the evidence on record. Though PW.1- the complainant, PW.2, the shadow witness, PW.3, the mahazar witness and PW.4, the Investigating Officer have supported the case of the prosecution, however, the Special Court acquitted the accused persons, which resulted in substantial miscarriage of justice. As per the evidence of PWs.1 to 4, the respondents were public servants and had received the bribe amount of Rs.10,000/- from PW.1-the complainant for sanction of Ex.P4 bill. PW.1 has clearly stated that he had handed over the bills to accused No.1 and when PW.4, the Investigating Officer offered explanation from accused persons, they have admitted that bribe amount was received in respect of Ex.P4-bill. But the Special Judge committed an error in holding that there was no demand made by accused No.1 for illegal gratification of
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 Rs.10,000/-. In fact, PW.1 proved the aspect of demand made by accused No.1 by satisfactory evidence and his oral evidence is corroborated by PW.2, shadow witness.
14. It is contended that, in respect of trap is concerned, PWs.1 and 2 have categorically stated that on the day of the trap, PWs.1 and 2 went to the office of accused No.1 and requested him to sanction his bill. In turn, accused No.1 enquired PW.1, whether he had brought the money as demanded by him and PW.1 replied saying "Yes". Thereafter, when PW.1 went to pay the money, accused No.1 called accused No.2 and directed PW.1 to pay the amount to him and accused No.2 received the bribe amount as directed by accused No.1. Therefore, the evidence of PW.1 is also corroborated by the oral evidence of PW.2, shadow witness. Thus, the prosecution proved the demand and acceptance of the bribe amount. Further, the Investigating Officer seized the tainted amount from the pant pocket of accused No.2 in presence of mahazar witnesses-PWs.2 and 3, but, the Special Judge
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 has not appreciated this aspect and proceeded to acquit the accused persons.
15. It is contended that the prosecution proved the demand made by the accused persons and acceptance of bribe amount from PW.1 for sanction of Ex.P4-bill. The Special Court has failed to note that the amount had been seized from the possession of accused No.2, but, accused persons have not offered any explanation as to how such tainted amount came in possession of accused No.2. In fact, the Special Court ought to have drawn presumption under Section 106 of the Indian Evidence Act, as well as, it had failed to draw presumption under Section 20 of the P.C. Act. Hence, he prayed to allow the appeal by convicting the accused persons for the aforesaid offences.
16. Per-contra, learned counsel Sri A. S. Mahesha for respondent No.1/accused No.1 and Sri H. M. Muralidhar for respondent No.2/accused No.2 vehemently contended that the alleged trap is a created story; when
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 the file of PW.1 - complainant was not with accused No.1 and the file in question was to be moved after expiry of a month. Moreover, PW.1 submitted an application for sanction of bill on 04.02.2008 and on the same day, the raid was conducted. It shows that, PW.1 had a malafide intention to implicate accused persons in the case. If at all, Ex.P4-bill was pending for many days, then obviously one can presume that in order to clear the bill, the accused are demanding the bribe to do the official work. In this case, this has not happened. The bill was submitted on 04.02.2008 in the morning at 10.30 a.m. and on the same day, at 11.30 a.m. the case was registered. It is contended that the Investigating Officer has not collected call detail register(CDR) to demonstrate that there was demand on the part of accused No.1 from PW.1 - complainant and accused No.1 had interacted with each other and as such, the entire genesis of crime is doubtful and on the date of the alleged trap, no work was pending in respect of PW.1 - complainant and therefore, the question of demanding any gratification from PW.1 would
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 not arise and as such, the learned counsel justified the impugned judgment of acquittal passed by the Special Court and prayed to dismiss the appeal.
17. After hearing the learned counsel from both sides, the points that arise for Court's consideration in this appeal are:
1. Whether the prosecution has proved beyond reasonable doubt that on 04.02.2008 at about 10.00a.m. to 11.30 am, at the office of KFCSC Ltd, Mandya, accused No.1, M Narayanaswamy then District Manager of KFCSC Ltd Mandya being a public servant demanded PW-1, Manjunatha to pay a bribe of Rs.10,000/ in connection with passing of transportation of kerosene bill for the month of January, 2008. On the same day, at about 5.15 pm, accused No.1 demanded and accepted Rs.10,000 as bribe amount from PW.1 by directing him to pay such amount to accused No.2, B.S.Ramesha, the Assistant Manager, who in turn, received bribe amount from PW.1 by demand, which is other than legal remuneration, thereby, committed offences punishable under sections 7, 13(1)(d) read with section 13(2) of P.C. Act?
2. Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
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18. Before proceeding further in analyzing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused of the offences punishable under Sections 7, 13(1)(d) read with section 13(2) of P.C. Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused have already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analyzed.
(a) Our Hon'ble Apex Court, in its judgment in the case of CHANDRAPPA AND OTHERS -vs- STATE OF KARNATAKA, reported in (2007) 4 SUPREME COURT CASES 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
(b) In the case of SUDERSHAN KUMAR -vs- STATE OF HIMACHAL PRADESH reported in (2014) 15 SUPREME COURT CASES 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case,
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 would interfere only for very substantial and compelling reasons.
(c) In the case of JAFARUDHEEN AND OTHERS
-vs- STATE OF KERALA, reported in (2022) 8 SUPREME COURT CASES 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
19. The above principles laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of RAVI SHARMA -vs- STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 reported in (2022) 8 SUPREME COURT CASES 536 and also in the case of ROOPWANTI -vs- STATE OF HARYANA AND OTHERS reported in AIR 2023 SC 1199.
20. It is keeping in mind the above principles laid down by the Hon'ble Apex Court, I proceed to analyse the evidence placed by the prosecution in this matter.
21. To attract the offence punishable under Section 7 of PC Act, the prosecution has to establish that accused persons voluntarily demanded and accepted the bribe amount.
22. Section 7 of the P.C. Act reads as under:-
7. [ Offence relating to public servant being bribed. [Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Any public servant who,-
(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014
(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c)performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,-
(i)the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii)it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
23. In view of the above proposition of law, facts and circumstances of the case, let me analyse the evidence.
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 23a. In order to prove the demand, the prosecution examined PW.1- A. R. Manjunatha- the complainant, who has stated that, accused No.1 was Manager and accused No.2 was Assistant Manager of Corporation. He being the Proprietor of Nandi Transport, Mysore entered into a contract with Corporation to transport kerosene under Ex.P3 dated 15.06.2007, since then, PW.1 had undertaken to transport kerosene to wholesale and retail outlets of Corporation and obtained bills for having supplied kerosene. Accordingly, PW.1 submitted the bill for the month of January 2008 for Rs.73,443.96/- on 04-02-2008 as per Ex.P4. On the same day, PW.1 met accused No.1, who in turn, demanded Rs.10,000/- in order to clear his bill. PW.1 was not willing to pay bribe, thus, he lodged the complaint- Ex.P1 to Lokayukta Police on the same day at 11:30 a.m. Hence, the Investigating Officer conducted entrustment mahazar-Ex.P2. It is his further evidence that, on the same day, at 5:00 p.m., PW.1 approached accused No.1 to honour Ex.P4-bill, thus,
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 accused No.1 again demanded Rs.10,000/-. As PW.1 tendered the bribe amount, accused No.1 directed accused No.2 to receive the said amount. Accordingly, accused No.2 received the bribe amount from PW.1 and later, the Investigating Officer entered the office of accused No.1, conducted raid on accused Nos.1 and 2, seized tainted amount from pant pocket of accused No.2, drew seizure mahazar as per Ex.P5 in presence of PW.2-shadow witness and PW.3-seizure mahazar witness.
23b. As per the evidence of PW.1, soon after submission of bill Ex.P4, he went to Lokayukta Police and lodged the complaint-Ex.P1. It is important to note that, PW.1 neither stated in Ex.P1-complaint nor deposed before the Court that soon after submission of Ex.P4-bill, he contacted accused No.1 in his office on 04.02.2008 at 10:30 a.m. till he filed complaint at 11:30 a.m. In the cross examination, he admits said aspect. PW.1 also admitted at para 17 of his evidence that after filing of
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 Ex.P4-transportation bill, accused No.1 has not demanded bribe amount of Rs.10,000/- from him. It is further established that, after submission of bill, PW.1 did not contact accused No.1, hence, there was no occasion for accused No.1 to make demand of bribe amount from PW.1, from 10:30 a.m. to 11:30 a.m. on 04.02.2008. Hence, the allegation of prosecution that on 04.02.2008 at 10:30 a.m., accused No.1 demanded PW.1 to pay the bribe amount to clear Ex.P4-bill, is ruled out.
23c. Now, another question that would arise is whether accused No.1 again demanded bribe amount on 04.02.2008 at 5:30 p.m. for the second time. As discussed above, in the morning on 04.02.2008, there was no demand from accused No.1 till filing of the complaint. When such being the situation, at 5:15 p.m., accused No.1 demanded bribe amount once again, is an after thought and far from imagination. Before making any demand by the accused persons, PW.1 had set criminal law into motion, by lodging complaint-Ex.P1. It shows that, PW.1
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 was interested in implicating accused No.1 in one way or other. The oral testimony of PW.1 further encompasses that, as on the date of complaint, no work was pending with accused persons. But, for the name sake, PW.1 appears to have submitted Ex.P4-bill at 10:30 a.m. and on the same day at 11:30 a.m., he lodged complaint to the Lokayukta Police. It shows the intention of PW.1 was to implicate accused No.1 in any manner.
23d. Further, the oral testimony of PW.1 is contrary to the evidence of PW.2, shadow witness. He has stated that, he stood near chamber of accused No.1, PW.1 approached accused No.1 and enquired about his bill, thus accused No.1 insisted for bribe amount, but, this aspect is contrary to the evidence of PW.1. The evidence of PW.2 that he heard a conversation between PW.1 and accused No.1 is doubtful. In fact, PW.2 admitted that at the time of alleged trap, there was some noise in the Office of accused No.1, hence, conversation held between accused No.1 and PW1 was not clearly heard. Further, when PW.2 was
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 unable to hear the talks of other officials in the office of accused No.1, it is not known as to how, he could hear the interaction held between accused No.1 and PW.1, thus, he having heard the talks of PW.1 and accused No.1 alone, appears to be doubtful.
Therefore, when there is no earlier demand, the question that, accused No.1 further demanded bribe at 5:30 p.m. from PW.1 would not arise and cannot be accepted as trustworthy evidence. In this case, accused No.1 has not received any bribe amount from PW.1.
24. As per the case of the prosecution, it was accused No.2, who received bribe amount of Rs.10,000/- from PW.1 as per the direction of accused No.1. As there was no demand earlier by accused No.1, the question of accused No.1 directing accused No.2 to receive the bribe amount would not arise. This theory of prosecution cannot be believed as cogent and convincing evidence. PWs.1 and 2 stated that MO.1-tainted amount was recovered from the pant pocket of accused No.2. In fact, accused No.1
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 never demanded bribe from PW.1 and he never met accused No.2 in that connection with the alleged official work. Further, no official work of PW.1 was pending with accused No.2.
25. It is nobody's case that, accused No.2 demanded bribe amount of Rs.10,000/- in connection with passing of Ex.P4-bill. Therefore, recovery of tainted amount, MO.1 from possession of accused No.2 without there being any demand is not sufficient to hold that accused No.2 demanded and accepted bribe amount. More importantly, prior to alleged trap, PW.1 met accused No.1 and issued Ex.D1 marriage invitation card and same was admitted by PW.1, but he has taken up the contention that, Ex.D1 was issued to accused No.2 prior to alleged trap. Thus, it is clear that, amount was paid to accused No.2 and same was seized from accused No.2, without there being any demand.
26. Ex.P19, the explanation offered by accused No.2 clearly establishes that, PW1 tendered MO.1 amount along
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 with Ex.D1-Marriage invitation card, stating that, accused No.1 directed him to hand over amount to accused No.2. The explanation offered by accused No.2 appears to be natural and acceptable, as accused No.2 never demanded PW.1 to give the bribe amount. Mere receipt of an amount by accused No.2 in the absence of any evidence with regard to demand, it cannot be said as demand is proved. The foundational facts of demand and acceptance of bribe amount by accused No.1 and accused No.2 is not forthcoming in the evidence of the prosecution, in the manner required under the law.
27. PW3-Nagaraju, the witness to entrustment mahazar and seizure mahazar has reiterated the evidence of PW.2. In the cross examination, he admits that, firstly, the hands of accused No.1 was washed and later, hands of accused No.2 was washed. He has not seen the bribe amount with accused No.2, while he was washing his hands. It clearly shows that there is contradictory
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 evidence of PW.1, PW.2 and PW.3 with regard to washing of hands and seizure of bribe amount.
28. PW4-E.S. Veerabhadraiah, Police Inspector, Lokayukta, Mandya and the Investigating Officer has stated that he received complaint-Ex.P1 from PW.1 and registered the case. He secured PWs.2 and 3 panchas and conducted Ex.P2-entrustment mahazar, visited the office of accused Nos.1 and 2, conducted trap proceeding, drew seizure mahazar Ex.P5, seized MO1-currency notes and MO.2-pant, sent MOs.3 to 12 sample bottles to FSL, recorded statement of witnesses, concluded investigation and filed the charge sheet.
29. The Hon'ble Apex Court in case of NEERAJ DUTTA -vs- STATE (GOVT. OF N.C.T. OF DELHI) reported in AIR 2023 SC 330, wherein the Hon'ble Apex Court at paragraph Nos.68, 69, 70, 46 and 52 held as under:
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68. What emerges from the aforesaid discussion is summarized as under:
(a) Proof of demand and acceptances 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.
(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.
(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.
(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 the 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.
(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
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 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 inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d) and (i) and (ii) of the Act.
(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.
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(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 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.
(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.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature.
69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence" of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.
70. Accordingly, the question referred for consideration of this constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts.
The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English law, there are three categories of presumptions, namely,
(i) presumptions of fact or natural presumption;
(ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e. "presumptions of mixed law and fact" or "presumptions of fact recognised by law". The expressions "may presume"
and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume". "May presume"
leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance,
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.
52. As opposed to the expressions "may presume"
and "shall presume", the expression "conclusive proof" is also used in Section 4 of the Evidence Act. When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that evidence or by some other evidence that the court permits or requires. When evidence which is made conclusive is adduced, the court has no option but to hold that the fact exists. For instance, the statement in an order of the court is conclusive of what happened before the presiding officer of the court. Thus, conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combat that effect. When a statute makes certain facts final and conclusive, evidence to disprove such facts is not to be allowed.
(Emphasis supplied).
30. It is well established principle of law that, mere recovery by itself cannot prove the charge of the prosecution against the accused persons. In the case of B. JAYARAJ -vs- STATE OF ANDHRA PRADESH reported in (2014) 13 SCC 55, the Hon'ble Apex Court has held that, to prove the charge, the prosecution has to prove beyond reasonable doubt that, the accused persons have voluntarily accepted the tainted amount knowing it to
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 be bribe. The absence of proof of demand, for illegal gratification and mere recovery of currency notes from possession of accused are not sufficient to constitute such offence.
31. In the said judgment, the Hon'ble Apex Court further held that, even presumption under Section 20 of the P.C. Act can be drawn only after demand or acceptance of illegal gratification is proved. It is well settled that, initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the Trial Court.
32. On perusal of the material available on record, it goes to show that there was no work pending by accused persons and there is no question of any demand and acceptance of bribe amount by the accused persons, thus, the prosecution evidence fails to establish the same and there is no evidence that, accused persons have demanded Rs.10,000/- and none of the witnesses have
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 stated so. Hence, unless demand is proved, the prosecution case cannot be sustained; it fails as mere recovery of money does not constitute an offence.
33. In the instant case, before conducting seizure mahazar, pre trap mahazar was conducted and the Investigating Officer in categorical terms instructed PW.1 to switch on the voice recorder. If accused persons made demand, PW1 was instructed to record voice conversation between accused and PW1, thus, PW.1 has not properly recorded and it was not played at all. Giving of voice recorder and recording of conversation between the complainant and accused, containing demand of bribe amount prior to registration of complaint amounts to collection of evidence and it is impermissible under law.
This similar ratio is laid down by a Co-ordinate Bench of this Court, in the case of SRI RAMESH DESAI AND ANOTHER -vs- THE STATE OF KARNATAKA BY RAICHUR LOKAYUKTA P.S., reported in 2012 (3) KCCR 1738. Therefore, it is not necessary to give much
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 importance to the aspect of voice being not recorded in the voice recorder in order to prove the demand.
34. The learned counsel appearing for the accused have vehemently contended that to prove the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, the prosecution has to prove both the demand and acceptance of bribe beyond all reasonable doubt and on that point, he has placed reliance on a Co-ordinate Bench decision of this Court in the case of SMT. MAMTAZ BEGUM -vs- THE STATE OF KARNATAKA reported in 2013 (1) KCCR 381, wherein it is held at para 17 as under:
"unless both demand and acceptance is proved by the prosecution beyond all reasonable doubt, the accused cannot be convicted for the offence under Sections 7 or 13 of the Prevention of Corruption Act, 1988. Strict observance of the requirements of law is to be complied in respect of the prosecution in the Prevention of Corruption Act, 1988. Both P.W.1 and P.W.4 have been treated hostile by the prosecution and their version regarding demand and acceptance varies from each other and from the documentary
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 evidence. Hence, I am of the opinion that the prosecution has not proved that the accused and the accused herself has demanded the illegal gratification of Rs.500/- from the complainant P.W.4 and the benefit of this doubt goes to the accused."
35. Further, the Hon'ble Supreme Court of India in the case of C. SUKUMARAN Vs. STATE OF KERALA reported in 2015(2) KCCR SN 140 (SC), has held as under:
"(B)PREVENTION OF CORRUPTION ACT, 1988 - Sections 7 and 13(1)(d) -
Acquittal - Special Judge coming to erroneous conclusion that appellant/accused received money - Therefore recording finding that there was demand and acceptance of bribe money on part of appellant --High Court holding that demand alleged to have been made by appellant was not proved - Setting aside that part of conviction and sentence - Proper - However, affirming conviction for alleged offence under Section 13(1)(d) read with Section 13(2), although as per law, demand by appellant under Section 7 of Act, should have been proved to sustain charge under Section 13(1)(d) - Erroneous - No prosecution witnesses deposing that appellant was person who had demanded and accepted bribe - Complainant materially turning hostile - Held, it is safe to say that prosecution has failed to prove beyond any reasonable doubt that appellant had accepted illegal gratification from complainant."
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36. In the case of M.R. PURUSHOTHAM Vs. STATE OF KARNATAKA reported in 2014(5) KCCR 1255 (SC), the Hon'ble Supreme Court has held as under:
"PREVENTION OF CORRUPTION ACT, 1988 - Section 13 - Acquittal - Demand and acceptance of illegal gratification by accused - For prosecution to prove - Complainant not supporting prosecution case as to demand - No other evidence adduced by prosecution in that regard - Evidence of witness/Government servant and contents of complaint cannot be relied upon to conclude that said material furnishes proof of demand allegedly made by accused - High Court not correct in holding demand alleged to be made by accused as proved - Mere possession and recovery of currency notes from accused without proof of demand - Will not bring home offence under Section 13(1)(d) - Conviction and sentence imposed on accused set aside."
37. Admittedly, in the instant case, P.W.1 - complainant submitted bill-Ex.P4 on 04-02-2008 at 10:30 a.m. in Tappal Section and on the same day, at 11:30 a.m. he lodged complaint-Ex.P1 to Lokayukta Police. It shows that, the file had not reached to accused No.1 and hence, there was no work pending before accused No.1 and hence, there is no question of demand. Thus the
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 prosecution evidence fails and there is no evidence that accused Nos.1 and 2 demanded Rs.10,000/- and none of the witnesses have stated so. Unless demand is proved, the prosecution case cannot sustain and it fails. Further, mere recovery of money is not essential. Prosecution had failed to prove its case beyond doubt; hence counsel prays to acquit the accused.
38. Further, mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence punishable under Section 13(1)(d) of the Act.
39. It is settled position of law that, circumstances how so ever cannot take place of proof and that, the guilt of the accused have to be proved by the prosecution beyond reasonable doubt. The golden principles are laid down by the Hon'ble Supreme Court in SHARADBIRDHI CHAND SARDA -vs- STATE OF MAHARASHTRA reported in (1984) 4 SCC 116.
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40. The Hon'ble Supreme Court of India in case of N. VIJAYAKUMAR -vs- STATE OF TAMIL NADU reported in (2021) 3 SCC 687, has held as under;
"Though, High Court was of the view that prosecution witness can be believed, unless it is held that the view taken by trial Court disbelieving the witnessess is not a possible view, High Court ought not have interfered with the acquittal recorded by trial Court-Resultantly, reversal of acquittal by High Court held not justified and thus, conviction set aside."
41. In case of NAGABHUSHAN -vs- STATE OF KARNATAKA reported in (2021) 5 SCC 222, the Hon'ble Apex Court has observed as under:
7.2.2. When the findings of the fact recorded by a Court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under;
(Babu case, SCC P. 199) "20.The finding of fact recorded by a Court can be held to be perverse, if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/ inadmissible material.
The finding may also be set to be perverse if it is "against the weight of the evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 7.2.3. It is further observed, after following the decision of this Court in Kuldeep Singh Vs. Commissioner of Police that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But, if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
42. The learned counsel for the respondents submits that the Special Court considering the oral and documentary evidence and the relevant provision of law has acquitted the respondents, hence, there is no merit in the contention of appellant - State, as the appellate Court normally will not set aside the acquittal judgment, since, the presumption of innocence available to accused normally will not disturb in view of ratio laid down in the case of SharadBirdhi Chand Sarda (supra).
43. In order to prove the offences alleged against the accused persons under Sections 7 and 13(1)(d) of the P.C.Act, the prosecution has to prove that, the accused
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 persons had demanded and accepted illegal gratification from the complainant. The demand of illegal gratification is a sine qua non for constitution of an offence under the PC Act. From the perusal of the evidence adduced by the prosecution, the ingredients of an offence viz., demand, acceptance and recovery of the amount of illegal gratification have not been proved satisfactorily. Further, mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts and circumstance of the case, the prosecution failed to prove the ingredients of Sections 7 and 13(1)(d) of the PC Act.
44. The presumption under Section 20 of the P.C. Act cannot come to the aid of the prosecution and accordingly, the Special Court has not drawn presumption that, accused persons had received a sum of Rs.10,000/- as a motive or reward to show official favour in respect of the complainant. Therefore, considering the oral and
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 documentary evidence on record, the Special Court has acquitted the respondents/accused persons.
45. In view of the above proposition of law and decisions cited supra, in the present case, I have analyzed the entire oral and documentary evidence on record and found that, there is insufficient evidence to show that, accused persons have demanded and accepted bribe amount of Rs.10,000/- from PW1 - complainant.
46. For the reasons stated above and having given careful consideration to the above evidence and submissions made by learned counsel for the parties and in the back drop of the evidence discussed above and tested in the light of the principles of law highlighted above, it must be held that finding recorded by the Special Court does not suffer from any manifest error and improper appreciation of evidence on record. Therefore, the judgment of the Special Court acquitting the accused persons for the aforesaid offences is sustained in law. I do
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NC: 2024:KHC:15919 CRL.A No. 747 of 2014 not find any grounds to interfere with the well reasoned judgment passed by the Special Court.
47. In the result, the point Nos.1 and 2 raised for consideration are answered in the negative. Hence, the following:
ORDER The appeal is dismissed.
The judgment of acquittal passed by the Principal Special Judge, Mandya in Special Case (P.C. Act) No.41/2009 dated 29.03.2014 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act, is hereby confirmed.
Registry is directed to send copy of this judgment along with Trial Court records to the Trial Court forthwith.
Sd/-
JUDGE MN List No.: 1 Sl No.: 51