Karnataka High Court
Shivananda Bankolli vs State By Lokayukta Police on 24 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 537, 2020 (2) AKR 670
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.1215 OF 2010
BETWEEN
SHIVANANDA BANKOLLI
S/O RUDRAPPA
AGED ABOUT 64 YEARS
DEPUTY COMMISSIONER OF EXCISE
R/AT CHITHRABAANU ROAD
A & B BLOCK
KUVEMPUNAGAR
MYSORE-570 023.
... APPELLANT
(BY SRI. CHANDRASHEKAR .P, ADVOCATE FOR
SMT. VIJETHA .R NAIK - ADVOCATE)
AND
STATE BY LOKAYUKTA POLICE
MYSORE DISTRICT
BY THE S.P.P.
... RESPONDENT
(BY SRI. B.S. PRASAD - SPL. P.P. FOR
LOKAYUKTHA FOR RESPONDENT)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE JUDGMENT
OF CONVICTION DATED 29.10.2010 PASSED BY THE
PRL. SESSIONS JUDGE AND SPL. JUDGE, MYSORE IN
SPL. CASE NO.140/2004 - CONVICTING THE
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APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 7,
13(1)(d) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/accused challenging the judgment and order of conviction and sentence rendered by the Principal Sessions Judge & Special Judge at Mysore in Spl.Case No.140/2004 dated 29.10.2010, convicting the appellant/accused for the offence punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
The accused was sentenced to undergo imprisonment for a period of two years and to pay fine of Rs.5,000/- for the offence punishable under Section 7 and in default to pay the fine amount, to undergo imprisonment for six months. For the offence punishable under Section 13(2), the accused was sentenced to undergo imprisonment for a period of three years and to :3: pay fine of Rs.15,000/- and in default to pay the fine amount, to undergo imprisonment for one year. The sentences were ordered to run concurrently.
2. Heard Sri Chandrashekar.P., learned counsel for Smt.Vijetha R.Naik, learned counsel appearing for appellant and Sri B.S.Prasad, learned Spl.PP for respondent - Lokayukta.
3. The factual matrix of the appeal is as under:
It is stated in the complaint that on 22.12.2003, accused said to a public servant working as Deputy Commissioner of Excise, Mysore, demanded Rs.1,50,000/- from one Muneer Ahamad who is the complainant, as an illegal gratification other than legal remuneration for showing official favour, that is to issue transport permit for transporting 1000 Metric Tonnes of Molasses. It is alleged that an amount of Rs.85,000/- was already paid and the accused was demanding remaining amount of Rs.65,000/- to issue the remaining permit for three factories or otherwise he will not issue the permit and because of which they have incurred heavy loss and damages in their business. The complainant not :4: interested to give the bribe money demanded by the accused, lodged a complaint before the Inspector General Police, Karnataka Lokayukta at Bangalore as per Ex.P6. Along with the complaint he also produced the bribe amount of Rs.65,000/- in the denomination of 36 currency notes of Rs.1,000 and 58 currency notes of Rs.500/-. Subsequent to filing of complaint, the FIR was recorded as per Ex.P16. Thereafter, the case was handed over to PW.5 - A.N.Rajanna, who was working as Dy.SP at Lokayukta office of Bangalore by the IGP and he was instructed to conduct the investigation. Accordingly, he registered the case and sent FIR to Special Court at Bangalore and laid charge sheet against the accused by collecting the material evidence. He secured PW.1 - A.N.Ramesh and one Gopal to act as a panch witnesses. In the presence of those panch witnesses, PW.5 / Investigating Officer conducted the pre-trap mahazar as per Ex.P2. During the pre-trap mahazar, PW.2- complainant had produced MO.6 tainted currency notes amounting to Rs.65,000/-. In their presence the demonstration was held. The sodium carbonate solution :5: was prepared in the presence of panch witnesses and phenolphthalein powder was applied on the currency notes. PW.5 briefed those panch witnesses and the complainant, that if the accused who is said to be the Government servant when comes into contact with the tainted currency notes, his fingers will be washed with sodium carbonate solution which turns into pink colour.
Subsequent to drawing of the pre-trap mahazar as per Ex.P2, PW.5 led the team consisting the other staff members in a police jeep to Mysore where the accused was working as a Deputy Commissioner of Excise in order to lay the trap. As per the instructions of Lokayuktha Police and in the presence of PW.1 who is a shadow witness, the accused received amount from the complainant from his right hand and exchanged the said amount to his left hand. Again he took the said amount to his right hand and kept the said amount in his right side pant pocket and thereafter, the complainant came outside and gave a signal and at that time, the brother of the complainant was with the accused and immediately, the Lokayuktha Police came and after introduction with :6: the accused conducted the trap mahazar as per Ex.P3. Subsequently, PW.5 collected documents as per Exs.P1 to P32 and M.Os.1 to 8. MO1 is the bottle containing solution of right and left hand wash of PW.1, MO.2 is the solution, MO.3 is the bottle containing solution of right hand wash of accused, MO.4 is the bottle containing solution of left hand wash of accused, MO.5 is the bottle containing solution of pant pocket wash of accused, MO.6 is the bait money amount of Rs.65,000/- in the denomination of 36 notes of Rs.1000/- denomination and 58 notes of Rs.500/- denomination, MO.7 is the sample of sodium carbonate solution and MO.8 is the solution containing right hand of the accused. These are all the material objects secured by the IO and laid the charge sheet against the accused before the concerned Court at Bangalore.
Subsequent to laying charge sheet against the accused, the trial Court at Mysore in Spl.C.No.140/2004 had received the charge sheet which was transferred from Bangalore along with material documents. Subsequently, the trial Court framed charges against the accused for the :7: offence punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the P.C.Act. The accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused was recorded. In order to establish the guilt of the accused, prosecution in all examined PWs.1 to 5 and got marked Exs.P1 to P28.
Subsequent to closure of evidence on the part of the prosecution, accused was examined as required under Section 313 Cr.P.C. for enabling incriminating statement appearing against him, wherein the accused denied the truth of the evidence of the prosecution adduced so far. But he did not come forward to adduce any defense evidence as contemplated under Section 233 of Cr.P.C. On appreciation of the oral and documentary evidence available on record, the trial Court rendered the impugned judgment, convicting the accused for the aforesaid offence. It is this judgment which is challenged in this appeal by urging various grounds.
4. Learned counsel for the appellant contends that the judgment and order of conviction rendered by the trial :8: Court is contrary to law and material evidence available on record. He has taken me through the evidence of PW.1
- A.N.Ramesh who is a shadow witness. He states in his evidence about lodging of complaint by the complainant and also conducting the pre-trap mahazar as per Ex.P2. It is his evidence that he accompanied the complainant as per the instructions of PW.5 - IO, in his presence, the accused received the bribe amount from the complainant and the accused received the said amount from his right hand and exchanged the said amount to his left hand and again he took the said amount to his right hand and kept the said amount in his right side pant pocket. Thereafter, the complainant came outside and gave a signal and at that time, PW.4 - A.S.Mansoor, the brother of the complainant was with the accused, they introduced themselves with the accused and conducted the trap mahazar as per Ex.P3. The bait amount was seized and the hands of the accused were subjected to wash in the sodium carbonate solution, which turned into pink colour and thereafter, the accused gave his explanation. The currency notes which were recovered from the accused :9: tallied with the numbers which were earlier noted. He had subscribed his signature in Ex.P2 and Ex.P3 and he also identified his signature in Ex.P4, the explanation given by the accused.
But this witness was partly treated as hostile and was cross-examined. In the cross-examination, a suggestion was made that he has made a statement before the police as per Ex.P5 that the accused demanded the bribe amount to issue the transport permit, to that question, he stated that he do not remember the same. But he denied the suggestion that inspite of knowing the demand made by the accused, he is falsely deposing to help the accused.
This witness was further cross-examined by the defense counsel, he states that he do not remember in whose favour the complaint was given and a suggestion was made that Muneer Ahamad was introduced to him in the office of Lokayukta and he also came to know that the said Muneer Ahamad was doing business. Further, it was also elicited that he did not enquire the names of the persons, who were present. But he stated that the : 10 : complainant and his brother were introduced in the office of the Lokayukta. He further deposed that the complainant gave an amount of Rs.65,000/- to the Lokayukta Police and he checked the note numbers and the another panch witness - Gopal noted down the currency note numbers and denominations and he cross- checked whether the note numbers in Ex.P1 was correct or not and he found that the note number in sl.no.6 was not correct and he corrected the same and he signed in respect of correction. It is further elicited in his evidence that he was with the Lokayukta police from morning 10.30 till they returned to Bangalore from Mysore and he cannot say how the complainant and his brother came to Mysore, but he came along with Lokayukta police and met the complainant and his brother around 4.00 to 4.15 p.m. near the office of the accused. He also says that he cannot tell whether the complainant and his brother came in their personal car and when they were inside the chamber of the accused, the accused told to be outside for sometime and he took 15 minutes to attend the persons who were there in his chamber and thereafter, he went : 11 : along with the complainant and his brother to the office of the accused and accused did not enquire about him and Mansoor spoke to the accused and he cannot tell what he has spoken to the accused.
He further states that he cannot tell the names of the Lokayukta staff who held the hands of the accused and who prepared the solution for hand wash. But he admits that the seizure mahazar was prepared on the dictation of PW.5 - IO. He states that the accused kept the money in his right side pant pocket and alternative pant was provided to the accused and an amount of Rs.65,000/- was in the right side pocket of the pant and he cannot tell the colour and who stitched the pant. He further states that he was a witness in two trap cases and was the witness for seizure of the documents in another case. But however, the learned counsel for the appellant contends that the Trial Court has wholly relied on the evidence of the said PW-1 who is a stock witness in order to convict the appellant. The said PW-1's office being situated very next to the office of the respondent police, he has been used in the case as a prime witness for the : 12 : prosecution. It is the contention of the learned counsel that the said witness PW-1 has been made use of by the respondent - police as a trap witness also in three other cases excluding the present one. This most important aspect has been lost sight of by the Trial Court and hence it has grossly erred in accepting the evidence of PW-1 in its entirety, when his evidence is not corroborated by the complainant's evidence. The Trial Court ought to have rejected the evidence of PW-1 taking into consideration the fact that he is admittedly a regular witness for the respondent police and also due to the fact that his evidence is not supported by any other witnesses.
5. It is further contended by the learned counsel for the appellant that the Trial Court has failed to appreciate the fact that the complainant PW-2 himself has denied the fact of he having lodged any complaint against the appellant - accused. Further, the complainant has also denied that the appellant had made any demand for illegal gratification, much less the amount of Rs.1,50,000/- as alleged by the prosecution. PW-2 has further denied : 13 : handing over any money to the accused and he had just stated that the money was kept on the table. It is further deposed by PW-2 that his brother PW-3 has utilized the complainant for the purpose of filing the complaint. It is alleged in his deposition that PW-4 has not only supported the case of the prosecution but has also deposed contrary to the case as alleged by the prosecution. Further, it is seen from the evidence of PW-4 / A.S. Mansoor, brother of the complainant that he has totally turned hostile. In his evidence, he has deposed that he was not at all aware of lodging of the complaint by his brother PW-2 against the accused and that he did not even go the office of the Lokayuktha, Bangalore, and he was not even aware of the trap made against the accused. In his cross-examination as well, he has denied the suggestion that he used to visit the office of the accused to obtain permit for transporation of molasses. Further, he has also denied that the accused had demanded Rs.1,50,000/- out of which Rs.85,000/- was paid and since he was insisting Rs.65,000/-, PW-4 and his brother PW-2 went and lodged a complaint with the Lokayuktha Police and thereafter the police conducted : 14 : the trap against the accused. He also denied about his presence in the Lokayuktha office.
Thus, when both PW-2 complainant and his brother PW-4 who had accompanied him to file the complaint had totally denied about the accused demanding and accepting bribe in order to issue permit to PW-2 to transport molasses, the Trial Court has erred in convicting the accused. It is hence the contention of the learned counsel that the Trial Court ought to have appreciated the evidence of the complainant PW-2 and his brother PW-4 in its right perspective and acquitted the appellant.
6. It is nextly contended that the Trial Court failed to appreciate the fact that the pant of the accused / appellant which was allegedly seized and sent for chemical examination has not been produced before court. Though it is the case of the prosecution that the money was put into the right side pant pocket which is also revealed from the chemical examination report, however since the pant was not produced before court, the case of the prosecution could not have been accepted by the Trial Court. On the : 15 : said count alone, the Trial Court ought to have rejected the case of the prosecution.
It is the further contention of the learned counsel that the Trial Court has failed to appreciate the fact that neither PW-1 / shadow witness nor PW-5 / Investigating Officer are witnesses to the demand of bribe made by the accused. Hence, their evidence to the allegation of recovery of money could not have been accepted by the Trial Court. It is the further contention of the learned counsel that the Trial Court has failed to apply the settled legal principle that corroboration of evidence of the complainant and the shadow witness is a must. Unless such corroboration is there, it is not safe to pass an order of conviction. The main contention of the learned counsel is that in the case on hand, there is not only lack of corroboration in the evidence of PW1 and PW2, but also their evidence runs contrary to each other. He contends that mere recovery of money from the accused is not sufficient to prove the demand and acceptance of bribe amount. Hence, the learned counsel contends that prosecution has not been able to establish the basic : 16 : ingredients required to make out an offence under Sections 7, 13(1)(d) read with 13(2) of the PC Act to convict the accused, in spite of which the Trial Court has erred in convicting the accused and sentencing him as aforesaid.
It is the further contention of the learned counsel that the Trial Court has totally ignored the evidence to the effect that the company of the complainant M/s. T.T. Feeds Corporation and many other such companies were all bogus units and molasses obtained by them is being used for manufacturing illicit liquor and the same is being supplied to distilleries. In view of the fact that the appellant / accused in his capacity as the Deputy Commissioner of Excise, Mysore, had raised the said issue with the authorities, as a consequence, the respondents had framed the appellant himself to have been involved in the case. The same is evidenced by the letter of the Joint Commissioner, Excise, dated 13.02.2004. The said aspect has also been grossly ignored by the Trial Court while passing the judgment and order of conviction. : 17 :
7. The learned counsel has relied on the following judgments of the Hon'ble Apex Court in support of his contentions in the cases of:
i) V. SEJAPPA vs. STATE BY POLICE INSPECTOR LOKAYUKTA, CHITRADURGA (2016) 12 SCC 150,
ii) B.JAYARAJ vs. STATE OF ANDHRA PRADESH (2014) 13 SCC 55) and
iii) MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. vs. STATE OF PUNJAB (S.L.P.(CRIMINAL) No.207 OF 2016).
On all these grounds, the learned counsel for the appellant contends that the Trial Court has failed to establish the guilt of the accused beyond all reasonable doubt and hence the judgment and order of conviction and sentence is liable to be set aside.
8. Per contra, Shri B.S. Prasad, Spl.P.P. for Lokayuktha vehemently contends that the Trial Court, on a proper appreciation of the evidence as well as the material on record, has rightly convicted the accused by : 18 : its impugned judgment dated 29.10.2010 in Spl.Case No.140/2004, which judgment does not call for interference in this appeal. He contends that though the complainant PW-2 has turned hostile, he has categorically admitted in his evidence that he had given the bait money of Rs.65,000/- which was received by the accused in his right hand but that he immediately had kept the amount on the table. Further, the answers elicited by PW-2 in his cross-examination corroborated the evidence of PW-1 and though the accused gave explanation in terms of Exhibit P4 that the amount was kept on the table, however the chemical examination report at Exhibit P26 confirmed the trap and seizure of money. Further, the chemical examination report as well corroborated that the hand wash of the accused turned into pink colour. The further circumstance to evidence the fact that PW-2 had in fact given the bait money of Rs.65,000/- to the accused is proved by the fact that PW-2 has categorically admitted that he received an amount of Rs.65,000/- by way of cheque from the Lokayuktha Police, which amount was given by him to the Lokayuktha Police for conducting the : 19 : trap. Hence, the learned Spl. P.P contends that though PW-4, brother of the complainant turned hostile, since the evidence of PWs 1, 2, 3 and 5 corroborated the case of the prosecution, the Trial Court has rightly convicted the accused.
Though the defence taken by the accused is that the tainted currency notes were kept on the table, there is no explanation forthcoming from the accused as to how when his hands and pant were washed with sodium carbonate solution, they had turned pink. The fact that his hands turned pink cannot be denied. Accused had not given any explanation as to why the notes were there on his table as well.
In support of the said contention, the learned Spl.P.P. has placed reliance on a judgment of the Apex Court in the case of VINOD KUMAR vs. STATE OF PUNJAB (AIR 2015 SC 1206), wherein the Headnote (C) of the said judgment reads thus:
"(C) Prevention of Corruption Act (49 of 1988), Ss. 13, 20 - Bribery case - Demand, acceptance and recovery of money from accused - : 20 :
Proved in entirety by testimony of prosecution / trap witness - Further appellant-accused was caught red handed with currency notes - No explanation given by him as regards recovery of notes - Thus legitimate presumption can be drawn that accused had received or accepted said currency notes on his own volition -
Conviction of accused, held was proper." The learned Spl. P.P. has further placed reliance on a judgment of the Apex Court in the case of HAZARI LAL vs. STATE (DELHI ADMINISTRATION) ((1980) 2 SCC
390), wherein the relevant headnote of the said judgment reads as under:
"Prevention of Corruption Act, 1947 -
Sections 4(1), 5(2) and 5(1)(d) - Penal Code, 1860, Section 161 - Evidence Act, 1872, Section 114, Illustration (a) - Acceptance of illegal gratification
- Passing of money to the possession of the accused can be proved by direct as well as circumstantial evidence - Circumstances leading to the only inference of acceptance of money by the accused - Presumption under Section 114, Evidence Act and Section 4(1), Prevention of Corruption Act also raised against the accused - Accused having failed to rebut the presumption, : 21 : his conviction under Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947, and Section 161 IPC, upheld."
Hence, the learned Spl.P.P contends that when the recovery of money coupled with other circumstances leads to the conclusion that the accused received gratification from some person, the court would certainly be entitled to draw the presumption under section 4(1) of the PC. Act. Hence, the conviction held by the Trial Court requires no interference in this appeal and hence he contends that the present appeal be dismissed.
9. On a careful consideration of the contentions advanced by the learned counsel for the appellant / accused and the learned Spl. P.P. for the respondent and on a perusal of the material on record, it is seen that the allegation is that on 22.12.2003, the appellant / accused said to a public servant working as Deputy Commissioner of Excise, Mysore, had demanded Rs.1,50,000/- from one Muneer Ahamad / complainant, as an illegal gratification for showing official favour, that is to issue transport : 22 : permit for transporting 1000 Metric Tonnes of Molasses. It was alleged that an amount of Rs.85,000/- was already paid by the complainant and the accused was demanding remaining amount of Rs.65,000/-. The complainant not being interested to give the bribe money demanded by the accused, is said to have lodged a complaint before the Inspector General Police, Karnataka Lokayukta at Bangalore as per Ex.P6. Thereafter matter was proceeded for investigation.
But however, as pointed out by the learned counsel for the appellant, the Trial Court has wholly relied on the evidence of the PW-1 who is a stock witness in order to convict the appellant. The said PW-1's office being situated very next to the office of the respondent police, he has been used in the case as a prime witness by the prosecution. The said witness PW-1 has been made use of by the respondent - police as a trap witness also in three other cases excluding the present one. This is a major flaw in the case of the prosecution which has been ignored by the Trial Court and hence it has grossly erred in : 23 : accepting the evidence of PW-1 in its entirety, when his evidence is also not corroborated by the complainant's evidence. The Trial Court ought to have rejected the evidence of PW-1 taking into consideration the fact that he is admittedly a regular witness for the respondent police.
Further, the complainant PW-2 himself has denied the fact of he having lodged any complaint against the appellant - accused. Further, he has also denied that the appellant had made any demand for illegal gratification or as regards handing over any money to the accused. PW-4 / A.S. Mansoor, brother of the complainant has in turn totally turned hostile to the case of the prosecution. He had deposed that he was not at all aware of lodging of the complaint by his brother PW-2 against the accused and that he did not even go to the office of the Lokayuktha, Bangalore, and he was not even aware of the trap made against the accused. Thus, when both PW-2 complainant and his brother PW-4 who had accompanied him to file the complaint had totally denied about the accused demanding and accepting bribe in order to issue permit to : 24 : PW-2 to transport molasses, the Trial Court has erred in convicting the accused.
Further, the pant of the accused / appellant which was allegedly seized and sent for chemical examination having not been produced before court, is also a flaw in the case of the prosecution. Further, it is seen that PW-1 / shadow witness or PW-5 / Investigating Officer are not witnesses to the demand of bribe made by the accused. Hence, their evidence to the allegation of recovery of money could not have been accepted by the Trial Court. Further, the settled legal principle that corroboration of evidence of the complainant and the shadow witness is a must, has not been complied with. Since there is no corroboration, the order of conviction ought to be set aside. As contended by the learned counsel, mere recovery of money from the accused is not sufficient to prove the demand and acceptance of bribe amount.
10. The contention as regards demand of illegal gratification being a sine qua non for constituting an offence under the PC Act is answered in a judgment of the : 25 : Apex Court in the case of V. SEJAPPA vs. STATE BY POLICE INSPECTOR LOKAYUKTA, CHITRADURGA (2016) 12 SCC 150, the relevant portion of which reads as under:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability : 26 : and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
Keeping in view the above judgment, it is seen that in the case on hand as well, demand and acceptance of illegal gratification by the accused has not been proved by the prosecution beyond all reasonable doubt. Moreover, just recovery of the money also is not sufficient to fasten the guilt on the accused.
11. In another judgment of the Apex Court in the case of B.JAYARAJ vs. STATE OF ANDHRA PRADESH ((2014) 13 SCC 55), as regards the contention that mere possession and recovery of currency notes without proof of : 27 : demand would not prove the offence under Section 7 of the PC Act, it is held thus:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2]
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of : 28 : Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
Relating the above decisions to the present case on hand, it is seen that in view of the fact that the complainant himself has disowned what he had stated in his initial complaint and there being no proof from the other witnesses to evidence the fact that the accused had : 29 : demanded illegal gratification in order to issue permit in favour of the complainant, the Trial Court has erred in convicting the accused.
12. Further, in a decision of the Apex Court in the case of MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. vs. STATE OF PUNJAB (S.L.P. (CRIMINAL) No.207 OF 2016), it is held that the evidence of a shadow witnesses in isolation cannot constitute demand as enjoined in law. The relevant portion of the said judgment reads as under:
"25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh : 30 : Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.
I find that in the case on hand as well, the date or time of the first demand / payment is not forthcoming. Further, the conviction is based on the evidence of the shadow witness PW-1 along with the I.O. / PW-5, which cannot constitute a demand as enjoined in law. : 31 :
13. In view of the above reasons, I find that the prosecution has not been able to put forth positive, acceptable, cogent, consistent, convincing and satisfactory evidence, to establish the basic ingredients required to make out an offence under Sections 7, 13(1)(d) read with 13(2) of the PC Act against the accused. Thus, when the offences alleged have not been proved by the prosecution beyond all reasonable doubt, benefit of doubt shall accrue in favour of the accused / appellant. Hence, I find that the impugned judgment requires to be interfered with, if not, certainly it would lead to a miscarriage of justice.
Consequently, the appeal is hereby allowed. The judgment of conviction and order of sentence rendered by the Prl. Sessions Judge & Special Judge at Mysore in Spl.Case No.140/2004 by order dated 29.10.2010 for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act is hereby set aside.
The appellant / accused is hereby acquitted of the offences leveled against him.
: 32 :
The bail bond if any executed by the appellant stands cancelled. If any fine amount has been deposited by the appellant, the same shall be refunded to him, on proper identification.
Sd/-
JUDGE DKB/KS