Karnataka High Court
State Of Karnataka vs Sri K P Puttaswamy on 21 December, 2023
1 CRL.A NO.1622 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1622 OF 2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA
KOLAR
...APPELLANT
(BY SRI. VENKATESH S ARABATTI, SPL PP)
AND:
SRI K P PUTTASWAMY
SON OF SRI PUTTAIAH
AGED ABOUT 54 YEARS
SUPERINTENDENT OF POLICE
KOLAR DISTRICT, KOLAR
RESIDING AT KUPPAHALLI VILLAGE
KASABA HOBLI,
HASSAN TALUK
HASSAN DISTRIC T
.....RESPONDENT
(BY SRI. S.P.KULKARNI, SENIOR COUNSEL FOR
SRI. VASANTHA KUMAR K M, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(1) AND (3)
CR.P.C, 1973 R/W SECTION 27 OF THE PREVENTION OF
CORRUPTION ACT, 1988 PRAYING TO a) GRANT LEAVE TO
FILE THE APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 27.03.2017 IN SPL.C. (CORRUPTION)
NO.13/2011 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KOLAR; b) SET ASIDE THE ORDER DATED
27.03.2017 IN SPL. C (CORRUPTION) NO.13/2011 PASSED BY
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR; c)
2 CRL.A NO.1622 OF 2017
CONVICT THE RESPONDENT / ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTION 13(1)(d) R/W SECTION 13(2)
OF THE PC ACT AND CONSEQUENTLY SENTENCE THE
RESPONDENT / ACCUSED FOR THE CHARGES LEVELED
AGAINST HIM; d) PASS SUCH OTHER ORDER/S DEEMS FIT IN
THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS
OF THE ABOVE APPEAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 26.10.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 378 (1) and (3) of Cr.P.C r/w Section 27 of the Prevention of Corruption Act, 1988 (for short 'the P.C Act'), the State represented by Lokayuta Police has challenged the acquittal of respondent/accused for the offences punishable under Section 7 r/w Section 13 (1) (d) r/w Section 13 (2) of P.C. Act.
2. For the sake of convenience, the parties are referred to by their rank before the trial Court.
3. A charge sheet came to be filed against the accused alleging that during the relevant point of time, he was working as Superintendent of Police, Kolar. 3 CRL.A NO.1622 OF 2017 Complainant Prakash was working as Police constable at Kolar town Police station. On 10.04.2008 he was on weekly off. However, in the evening he returned and claiming that he is suffering from ill health, he took MHR book but thereafter he failed to report for duty. Without applying for leave, and also without intimating his higher officer, he remained authorised absent. In this regard, a departmental enquiry was held against him as per the directions of accused and a report was given holding that the charges levelled against him are proved.
3.1 A Show cause notice was issued to the complainant as to why he should not be dismissed from service. It is alleged that in this background when complainant met the accused and requested him to show leniency, accused demanded and received bribe of Rs.25,000/-. However, accused passed an order imposing punishment of compulsorily retirement of the complainant. On 24.11.2009, when complainant met the accused and enquired him about the order, accused demanded additional sum of Rs.10,000/-. Not willing to 4 CRL.A NO.1622 OF 2017 pay the same, complainant filed the complaint on 27.11.2009 and on that day, the accused was caught red handed receiving the tainted money of Rs.10,000/-.
4. Accused pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused, on behalf of the prosecution, 9 witnesses are examined as a PWs-1 to 9, Ex.P1 to 11 and MO-1 to 15 are marked.
6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence.
7. He has not led any defence evidence.
8. Vide the impugned judgment and order, the trial Court acquitted the accused holding that the prosecution has failed to prove the allegations against the accused beyond reasonable doubt.
9. Being aggrieved by the same, the State has come up with this appeal, contending that the impugned 5 CRL.A NO.1622 OF 2017 Judgment and order are opposed to law, facts and evidence placed on record. The trial Court has erred In coming to the conclusion that the demand and acceptance are not established; no work was pending as on 27.11.2009; there is Lacuna in the investigation regarding registration of FIR, which creates doubt about the case and the voluntary retirement application is not produced before the Court. The trial court has failed to appreciate that these reasons cannot enure to the benefit of accused.
9.1 The trial Court has failed to appreciate that Ex.P3 proceedings regarding the file maintained in the office pertaining to the complainant refers to his application for voluntary retirement dated 10.09.2009. It also contains the seal of the office of accused acknowledging the receipt. Despite the same, the trial Court has erred in holding that the voluntary retirement application is not produced. The further proceedings in Ex.P3 demonstrate that on various dates, viz., 14.07.2009, 01.08.2009, 10.09.2009, 13.10.2009 and 6 CRL.A NO.1622 OF 2017 20.10.2009, there have been various activities. Though the order was ready on 13.10.2009, accused kept it with him till 20.10.2009. It was not served on the complainant. As per Ex.P8, the complainant visited the office of the accused, which clearly prove the allegations of demand and receipt of illegal gratification.
9.2 The trial Court has erred in not appreciating the fact that in the absence of certificate under Section 65B of the Evidence Act, though the allegation could not be proved through the pen camera, voice recorder etc, the said allegations are proved through the oral evidence of prosecution witnesses. The trial Court has erred in attaching undue importance to the fact that the witnesses were intimated on 26.11.2009 itself, whereas the complaint was filed on 27.11.2009. The prosecution case is supported by the evidence of PW-1, 3, 7, 9, the right hand wash of accused and recovery of tainted notes, at the instance of accused and therefore, as held by the Hon'ble Supreme Court in the matter of State of Andhra Pradesh Vs. P.Venkateshwaralu 7 CRL.A NO.1622 OF 2017 (P.Venkateshwaralu)1 the presumption under Section 20 of P.C. Act is required to be drawn. Viewed from any angle the judgment and order are not tenable and prays to allow the appeal, convict the accused and sentence him in accordance with law.
10. In support of his arguments, learned counsel for complainant has relied upon the following decision:
(i) Chandrappa and Ors. Vs. State of Karnataka (Chandrappa)2
11. On the other hand, learned counsel representing the accused has supported the impugned Judgment and order of the trial Court and prays to dismiss the appeal.
12. In support of his arguments, learned counsel for accused has relied upon the following decisions:
(i) N.Raghumurthy Vs. State by Lokayuktha Police, Mysuru District (Raghumurthy)3
(ii) Shafhi Mohammad Vs. State of Himachal Pradesh (Shafhi)4 1 (2015) 7 SCC 283 2 (2007) 4 SCC 415 3 2018 (3) Kar.L.J 637 4 AIR 2018 SC 714 8 CRL.A NO.1622 OF 2017
(iii) Anvar P.V. Vs. P.K.Basheer and Ors.
(Anvar.P.V)5
(iv) Sonu @ Amar Vs. State of Haryana (Sonu @ Amar)6
(v) Harpal Singh @ Chhota Vs. State of Punjab (Harpal Singh)7
(vi) State of Karnataka Vs. Rahimankhan Nannekhan Pathan (Rahimankhan)8
(vii) Sri.N.A.Suryanarayana @ Suri Vs. State by Inspector of Police CBI/SPE/Bangalore (N.A.Suryanarayana)9
(viii) Madhukara @ Madhu @ Mallesha Vs. State of Karnataka by Vinobanagara Police Station, Shimoga (Madhukara)10
(ix) K.H.Thimmappa Vs. Karnataka Lokayukta Police, Bangalore (K.H.Thimmappa)11
(x) P.Satyanarayana Murthy Vs. District Inspector of Police & Anr.
(P.Satyanarayana Murthy)12
(xi) Mukhtiar Singh (since deceased) through his LR Vs. State of Punjab(Mukhtiar Singh)13
(xii) Shivananda Bankolli Vs. State by Lokayukta Police, Mysore District by the SPP (Shivananda Bankolli)14
(xiii) Gangamma Vs. State by Lokayukta Police, Mysore (Gagamma)15 5 2014 AIR SCW 5695 6 AIR 2017 SC 3441 7 (2017) 1 SCC 734 8 Crl.A.No.2817/2011 9 2015 (1) KCCR 898 10 2019 (1) KCCR 841 (DB) 11 2018 (4) KCCR 2997 12 AIR 2015 SC 3549 13 (2017) 8 SCC 136 14 2020 (5) KCCR 326 9 CRL.A NO.1622 OF 2017
(xiv) N.Vijayakumar Vs. State of Tamil Nadu (N.Vijayakumar)16
(xv) V.N.Ratheesh Vs. State of Kerala (V.N.Ratheesh)17 (xvi) V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga(V.Sejappa)18 (xvii) The State of Karnataka Vs. Sri.Sugappa (Sugappa)19 (xviii) Kanhaiya Lal & Ors Vs. State of Rajasthan (Kanhaiya Lal)20 (xix) Rajendra @ Rajappa & Ors. Vs. State of Karnataka (Rajendra @ Rajappa)21 (xx) State by Lokayukta Police Station Belgaum Vs. Shivarudrappa Basavaneppa (Shivarudrappa)22 (xxi) State of Karnataka Vs. Shariff (Shariff)23
13. Heard arguments of both sides and perused the record.
14. Before appreciating the case of the prosecution and defence of the accused, it is relevant to 15 2020 (5) KCCR 497 16 2021 Crl.LJ. 1353 17 (2006) 10 SCC 617 18 (2016)12 SCC 150 19 Crl.A.No.200104/2016 20 (2013) 5 SCC 655 21 2021 (3) KCCR 2545 (SC) 22 2021 (3) KCCR 2737 23 2023 (3) KCCR 1828 (DB) 10 CRL.A NO.1622 OF 2017 refer to the decision of the Hon'ble Supreme Court in Chandrappa, wherein para No.42, it laid down the following general principles regarding powers of Appellate Court while dealing with an appeal against an order of acquittal:
(i) An Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The Code of Criminal Procedure puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of law.
(iii) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc are not intended to curtail extensive power of an Appellate Court in an appeal against acquittal. Such phraseologies are known in the nature of "flourishes of language" to emphasize the reluctance of an Appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(iv) 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 11 CRL.A NO.1622 OF 2017 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.
(v) If two reasonable conclusions are possible on the basis of evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court."
15. Keeping in mind the above general principles, it is necessary to examine the oral and documentary evidence placed on record.
16. The undisputed facts are that complainant was working as a constable and remained unauthorized absent. In his capacity as the Disciplinary Authority, accused initiated disciplinary proceedings against the complainant. In fact, accused admitted the allegations and the Enquiry Officer submitted report stating that the charges levelled against the complainant are proved. Based on the same, accused issued a show cause notice to the complainant as to why the report should not be 12 CRL.A NO.1622 OF 2017 accepted and he should not be imposed with maximum punishment.
17. It is alleged that in this regard, the complainant met the accused and requested him to take a lenient view. He demanded and received a sum of Rs.25,000/- and despite receiving the said amount, he passed order imposing punishment of compulsory retirement; Once again complainant met him on 24.11.2009 and accused made a demand for additional sum of Rs.10,000/- to pass a favourable order and on 27.11.2009 received the said amount in the form of bait money.
18. Of course accused has disputed the allegation of demand and receipt of bribe. He has set up a defence that on 27.11.2009, under the guise of meeting him, the accused has kept the tainted notes on his table without his knowledge and the same have been recovered. The accused has also taken up a defence that as on 27.11.2009, no work pertaining to the complainant was pending with him and as such there was no occasion for 13 CRL.A NO.1622 OF 2017 the accused to demand and received Rs.10,000/- to pass a favourable order. In the light of the defence set up by the accused, the burden is on the prosecution to prove that as on 27.11.2009, the work pertaining to the complainant was pending with the accused and in that connection he demanded and received bribe in a sum of Rs.10,000/-.
19. PW-2 Manjunath is the Second Division Assistant working at the office of Police Superintendent, Kolar. His evidence prove the fact that on 10.09.2009, complainant came and gave a representation (Reply to Show cause notice) and he has issued acknowledgement. He has also deposed that on that day complainant requested to give acknowledgement in respect of a representation given to the accused. Though initially he refused to give acknowledgement, after accused orally directed him to give acknowledgement, he has given the acknowledgement to the complainant.
20. Ex.P3 is the file seized from the office of the accused pertaining to the departmental enquiry held 14 CRL.A NO.1622 OF 2017 against the complainant. It is collected through PW-8 Sri.Phaneender Singh, Addl.Police Superintendent. It consists of page 77 to 169. Page No.83 and it's back page is the reply given by the complainant to the show cause notice. At the end of the same, he has sought for voluntary retirement on Medical ground. It bears the endorsement dated 10.09.2009 of the office of Superintendent, Kolar for having received the same. During the cross-examination of PW-7 K Ravi Shankar the Investigating Officer, it is elicited by the defence that on 27.11.2009 from the chamber of accused, he has seized the visitor's slip pertaining to the complainant.
21. These documents coupled with the evidence of PW-1 and 2 prove the fact that on 10.09.2009 as well as on 27.11.2009, the complainant has visited the chamber of accused and on 10.09.2009, the complainant has given reply to the Show cause notice and in the said reply, he has also sought for voluntary retirement. Therefore, the findings of the trial Court that the prosecution has not produced the voluntary retirement 15 CRL.A NO.1622 OF 2017 application given by the complainant is incorrect. There is no prescribed proforma for seeking voluntary retirement. While giving his explanation to the show cause notice, incidentally, the complainant has sought for granting voluntary retirement instead of passing any harsh order affecting the benefits which he is entitled on his retirement.
22. So far as the work pending with the accused pertaining to the complainant, though on 13.10.2009, the accused has passed orders (signed by him on 20.10.2009) at page Nos.81 and 82, imposing punishment of compulsory retirement on accused, at page Nos.84, 85 and 86 of Ex.P3, the accused has signed the said order on 13.10.2009, but his signature is scored off. Admittedly, it was not served on the complianant. Page No.78 of Ex.P3 is extract of e-mail dated 13.11.2009 sent on behalf of the accused i.e Superintendent of Police addressed to the PSI, Kolar City Police station, stating that the order imposing punishment of compulsory retirement on the complainant 16 CRL.A NO.1622 OF 2017 is issued on 13.10.2009 and it is sent to him in duplicate to serve a copy on the complainant and to return the other copy with the acknowledgement for having served on the complainant. However, the same is not returned duly served and therefore he is directed to do the needful at the earliest and return the acknowledgement. This document indicate that though the order imposing punishment of compulsory retirement on complainant was issued on 13.10.2009, even as on 13.11.2009 it was not served on the complainant. As on 27.11.2009 also it was not served on the complainant. Consequently, the matter i.e the work pertaining to complainant was still pending with the accused.
23. Therefore, the finding of the trial Court that no work was pending with the accused as on the date of complaint is incorrect. The accused has not placed any material on record to show that the punishment order was duly served on the complainant. Since the said order was not served on the complainant and copies were not sent to the higher Officers, it was still in the power of the 17 CRL.A NO.1622 OF 2017 accused to change the order and under the said premise, the complainant was in a position to believe that accused is going to pass favourable order by receiving the bribe amount.
24. The trial Court has disbelieved the case of the prosecution for the reason that though the case was registered on 27.11.2009, in the notice issued to the Director of KGID to send two witnesses on 26.11.2009, the crime number of the case is noted and it creates doubt as to the veracity of prosecution case. At the outset it is relevant to note that accused was no other than a Police Superintendent working at Kolar District. Complainant was an employee of police department working under him. From the inception the complainant has entertained a doubt that in his capacity as the head of the police department of the District, if along with him the shadow witness enter his chamber, the accused may become suspicious and may not receive the bribe amount in the presence of a third person. This fact is forthcoming in the complaint itself.
18 CRL.A NO.1622 OF 2017
25. In the complaint, the complainant has also stated that after the recent trap at the District police office, Kolar the accused has become cautious and not using words to demand bribe and on the other hand, he writes the amount of bribe which is required to be paid on paper and show it. In his case also, on 24.11.2009, when he went to the chamber of accused and requested him to convert the order of compulsory retirement into one of voluntary retirement, he shook his head and wrote the numeral '10' on a newspaper and when complainant questioned him whether he mean Rs.10,000/-, again accused shook his head and for this reason, complainant could not record their conversation. Having regard to the fact that accused was a powerful Police Officer heading the entire District, doubting that if he files complaint before the Lokayuktha office at Kolar, accused may come to know and there would be danger to his life, complainant has chosen to file the complaint at Bengaluru. The evidence led by the prosecution regarding the trap of accused is required to be 19 CRL.A NO.1622 OF 2017 appreciated in the light of the above peculiar facts and circumstances.
26. The evidence of the Investigating Officer i.e., PW-7 K.Ravishankar reveal that, for this reason the complainant has approached the Superintendent of Police, Lokayuktha, Bengaluru and in turn on 26.11.2009, at 4.30 p.m, the Superintendent of Police, Lokayuktha, Bengaluru summoned the Investigating Officer and without disclosing the facts directed him to secure two witnesses. In all probabilities anticipating registering of case on the same day, the Investigating Officer might have noted the next crime number in the notice sent to the Director of KGID while requesting him to depute two witnesses. The office copy of this letter is not marked. However, it is available in the file.
27. The evidence of PW-7 i.e., the Investigating Officer reveal that by the time the witnesses came, it was evening and when it was brought to the notice of the Superintendent of Police, he said that the complainant has not yet come and as it is already evening he advised 20 CRL.A NO.1622 OF 2017 the Investigating Officer to get the witnesses on the next morning. Accordingly, he directed the witnesses to come at 7.00 a.m., on the next day. The evidence of PW-7 also disclose that he did not meet the complainant on 26.11.2009 and met him on the next day i.e., on 27.11.2009. He has specifically deposed that on the next day at 7.00 a.m, the Superintendent of Police, Lokayuktha, Bengaluru called him to his chamber and handed over the complaint and till then complainant had not met him. It is pertinent to note that the defence counsel has not at all cross-examined the Investigating Officer, inviting his attention with regard to noting the crime number in the letter addressed to the Director of KGID on 26.11.2009 itself i.e., even before registering the case and seeking his explanation. The defence has also not demonstrated as to how the interest of the accused was prejudiced for this reason. Even the trial Court has not given a definite findings as to what prejudice is caused to the accused.
21 CRL.A NO.1622 OF 2017
28. The evidence of PW-5 prove the sanction issued against the accused. At the relevant point of time, he was working as Under Secretary, Ministry of Home, Central Government. He has deposed that on 27.08.2010, a request letter was submitted by the prosecution to issue sanction against the accused. It was accompanied by the report of the Enquiry Officer, statement of witnesses and connected documents. After verifying the same, he placed it before the Home Minister on 30.10.2010. After verifying the same, on 03.09.2010, the Home Ministry gave consent for issuing sanction. In this regard on 15.09.2010, the opinion of the Central Vigilance Commission was secured. On 14.01.2011, the Central Vigilance Commission gave consent. Accordingly, on 21.01.2011, sanction order was issued as per Ex.P6, in the name of President of India. During his cross- examination, PW-5 has denied that all the relevant papers were not placed before the Ministry of Home, while securing sanction. Thus, the testimony of PW-5 prove that a valid sanction was issued for prosecution of the accused.
22 CRL.A NO.1622 OF 2017
29. Now coming to the allegations that accused demanded and received bribe in a sum of Rs.10,000/- from the complainant for converting the punishment of compulsory retirement into voluntary retirement.
30. During the course of his evidence, complainant who is examined as PW-1 has deposed that after the pre-trap mahazar proceedings, they proceeded to the office of accused at Kolar. After sending visitor's slip to the accused and with his permission he entered the chamber of accused and saluted him. He told accused that as per his demand he has brought Rs.10,000/-, for which accused lifted a file (gÀlÄÖ) gesturing him to keep the money on the table and after he kept the bait money on his table, accused covered it with the file (gÀlÄÖ). Accused said that he would get the file from GHA and do the needful and once again after saluting him, complainant came out of the chamber of accused. 23 CRL.A NO.1622 OF 2017
31. The testimony of complainant in the examination-in-chief does not reveal that accused demanded the bribe, though there is an indication that he received the same without any resistance. During his cross-examination, complainant has admitted that the door of chamber of accused is having an auto closure and it closes the door automatically. Thus, the evidence of complainant does not establish that on 27.11.2009, when he entered the chamber of accused, he demanded the bribe amount. Thus, the prosecution has failed to prove the demand.
32. The object and purpose of a shadow witness accompanying the complainant is to corroborate the evidence of complainant. However, the evidence of PW-3 H.T.Shankaregowda, shadow witness reveal that he did not enter the chamber of accused and on the other hand stopped near the door of his chamber. Consequently, when complainant entered the chamber of accused, he did not have the benefit of observing, whether accused demanded and received the bribe amount, either by 24 CRL.A NO.1622 OF 2017 words or by gesture. Consequently, his evidence is confined to what the complainant disclosed after returning from the chamber of accused. Therefore, the evidence of PW-3 H.T.Shankaregowda, in his capacity as shadow witness is not of much help to the prosecution case.
33. It appears for the reason that the accused may not demand and receive the bribe amount in the presence of shadow witness, the Investigating Officer has taken precaution and fixed a button camera to the shirt of complainant. He has made a small hole in the hand bag of complainant and fixed a pen camera to it. Similarly he has given a digital voice recorder to the complainant with a direction to switch it on and record the conversation between him and accused. Therefore, in the absence of the corroboration from the shadow witness, the prosecution is required to take corroboration from these electronic devices.
34. After the trap, the Investigating Officer has displayed the recording made in button camera, pen 25 CRL.A NO.1622 OF 2017 camera and the conversation recorded in voice recorder and PW-8 S.R.Phaneender Singh has identified the accused in the videos and his voice in the voice recorder. The Investigating Officer has copied the contents of button camera, pen camera and voice recorder in the CDs and they are marked as MOs-2, 3 and 5. However, these copies have not been certified as required under Section 65B of the Evidence Act and in this regard the learned counsel for accused has relied upon Anvar P.V, Harpal Singh, wherein it is held by the Hon'ble Supreme Court that without certificate under Section 65B, the said evidence cannot be looked into. However, in Sonu @ Amar, the Hon'ble Supreme Court held that the objection to the admissibility of electronic evidence without certificate under Section 65B (4) is to be made before marking. Failure to object amount to waiver and cannot be raised at belated stage since it relates to mode or method of proof of document. Admittedly, in the present case the accused has not raised any objection for marking the CDs at MOs-1 to 5 and thereby waived his right to object for admissibility of the same. Therefore, 26 CRL.A NO.1622 OF 2017 there is no impediment to look into these CDs more particularly MOs-2, 3 and 5.
35. I have viewed MOs-2, 3 and 5. In fact in the trap mahazar at Ex.P3, the Investigating Officer has extracted the relevant portion of the video recording and conversation in the audio recording forthcoming in them. MOs-2 and 3 relates to video recording of the interaction between complainant and accused in the chamber of accused. Complainant has specifically deposed that when he entered the chamber of the accused and told him that he has brought the amount as demanded by him and accused raised a file gesturing to keep the amount below it and when he placed the bait money on the table, accused kept back the file. However, both button camera and pen camera have not focused on the face of the accused and therefore there is no occasion to record whether accused made a demand by gesture. However, the part wherein accused lifted the file below which the complainant kept the bait money after which accused released his hand from the file is recorded. 27 CRL.A NO.1622 OF 2017
36. There is also recording of the voice of accused in both button camera and pen camera as well as in the voice recorder as per MOs-2, 3 and 5 respectively, wherein he says that "it was not required" (K£ÀÄ ¨ÉÃPÁVgÀ°è®è). This piece of conversation of accused contradict the allegations made by the complainant that accused had demanded Rs.10,000/- to convert the order of compulsory retirement into voluntary retirement. If really there was demand by the accused and the payment made by complainant was as per the said demand, accused would not have stated that "it was not required". This supports the statement of accused that there was no demand by him, but complainant gave the money, although he did not object for payment of the same and by lifting the file (gÀlÄÖ) received it. Of course, the conduct of accused in passively receiving the bait money is not appreciable. However, fact remains that the prosecution has not proved the demand as required under law.
28 CRL.A NO.1622 OF 2017
37. It is pertinent to note that complainant had remained unauthorized absent and in his capacity as the Disciplinary Authority, domestic enquiry was conducted against him at the instance of accused and he is found guilty and in fact punishment of compulsory retirement was imposed, which the complainant wanted to be changed to voluntary retirement. During his cross- examination, a suggestion is made to the complainant that a criminal case was registered against him for attempt to murder his mother and brother and in this regard departmental enquiry was held and he was punished. It is pertinent to note that complainant has not denied this suggestion but replied that he do not remember it. In the circumstances, the complainant had reason to grind axe against the accused and in the said circumstances corroboration to his evidence is necessary.
38. Neither during the course of his evidence, the Investigating Officer nor PWs-1 and 3 i.e., the complainant and shadow witness have deposed that the Investigating Officer has instructed the complainant to 29 CRL.A NO.1622 OF 2017 pay the bait money only if demanded by the accused, although in the pre-trap mahazar at Ex.P2 under the caption "Instructions given to the complainant", it is stated that the Investigating Officer directed the complainant to pay the bait money only if demanded by the accused. As held by the Hon'ble Supreme Court in P.Satyanarayana, when demand is not proved accused cannot be convicted. Similarly, in Mukhtiar Singh, the Hon'ble Supreme Court held that when the evidence of complainant regarding demand and acceptance is not corroborated by the evidence of shadow witness, conviction is not sustainable. In V.Sejappa, the Hon'ble Supreme Court held that proof of demand of illegal gratification is a sine qua non for constituting an offence under Section 7 and mere recovery of tainted money from the accused is not sufficient to convict him.
39. On re-appreciation of the entire oral and documentary evidence placed on record, this Court is of the considered that this is not a fit case to interfere with 30 CRL.A NO.1622 OF 2017 the order of acquittal recorded by the trial Court. In the result, the appeal fails and accordingly, the following:
ORDER
(i) Appeal filed under Section 378(1) and (3) of Cr.P.C r/w Section 27 of the Prevention of Corruption Act is dismissed.
(ii) The impugned judgment and order
of acquittal dated 27.03.2017 in
Spl.C.(Corruption) No.13/2011 on
the file of Prl.District and Sessions
Judge, Kolar is confirmed.
(iii) The Registry is directed to send
back the trial Court record along
with copy of this judgment
forthwith.
Sd/-
JUDGE
RR