Karnataka High Court
State Of Karnataka vs Subhash Rudrappa Biradar on 9 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09th DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL No.200042/2014
BETWEEN:
State of Karnataka,
Represented by
Special Public Prosecutor (Lokayukta)
High Court Gulbarga
(Complainant before trial court)
(By Sri.Subhash Mallapur Special Public Prosecutor)
... Appellant
AND:
Subhash S/o Rudrappa Biradar,
Age: about 54 years,
Occ: Inspector, Commercial Tax Department
Dhulkhed Check Post Dist: Bijapur-586101.
... Respondent
(By Sri, S.V.Deshmukh Advocate )
This Criminal Appeal is filed under Section 378 (1) &
(3) of Cr.P.C. praying to set aside the judgment and order of
acquittal dated: 12-11-2013 passed in Spl. Case (Lokayukta)
No.8/2010 by Principal Sessions Judge /Special Judge
Bijapur acquitting the accused respondent for the offence
U/Sec.7 and 13(1) (d) R/w 13(2) of Prevention of Corruption
Act and convict the accused/respondent in the interest of
justice and equity.
This Criminal Appeal is coming on for final hearing
this day, the court delivered the following;
2
JUDGMENT
This Criminal Appeal against the Judgment of acquittal passed by the learned Prl. District & Sessions Judge/Special Judge Bijapur in Special Case (Lok) No.8 of 2010 dated: 12-11-2013 for the offences punishable under Sections 7 and 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act 1988
2. The appellant/State is Lokayukta Police and the respondent is the accused before the trial court.
3. For the purpose of convenience and to avoid repetition of discussion, the parties are referred in this Judgment as per their respective ranks before the Trial Court.
4. The brief case of the prosecution is that, accused being the public servant working as Inspector, Commercial Tax Department, Dhulkhed Check Post. When the complainant /PW.1 Yallappa brought his lorry bearing Reg. No.MH-22-N/256 from Maharashtra which 3 was carrying concrete mixture machine the Check Post officials stopped the said vehicle and enquired them, the said officials asked the complainant documents regarding said concrete mixture machine and on verifying it the officials told the complainant that he has to pay tax of Rs.40,000/-. Then the complainant informed them that, he is a poor person and unable to pay such huge amount. Then CW.8/PW.5 Yellappa Madikar told the complainant that, if he pays Rs.20,000/- as illegal gratification he will release the vehicle. The complainant told that, he will bring the money from Bijapur. Thereafter PW.5 told the complainant to come to Bijapur and give the mobile number. In this regard, the complainant on 03-03- 2008 at 4.30 p.m., lodged a complaint with Police Inspector Lokayukta Police Bijapur on that basis the case in Crime No.3/2008 for the offences under sections 7, 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act 4 1988 ((for short hereinafter referred to as "PC Act, 1988") registered.
Thereafter-words Lokayukta Inspector conducted entrustment panchnama by securing the pancha witnesses as per Ex.P.6. Then the complainant telephoned the accused (Subhash Biradar) as to where he should come, the accused told that, he is in Deepika Hotel Opp: KSRTC Bus-stand Bijapur. Accordingly Lokayukta Police along with two panchas Veeresh and Tamanna went there. In the hotel the accused took Rs.20,000/- and the Lokayukta police caught hold the accused along with Rs.20,000/- and they conducted phenolphthalein test by dipping the hands of the accused in sodium carbonate solution which turned into pink colour. Then Investigating Officer recorded the statement of the accused, conducted trap panchanama as per Ex.P.7. The Investigating after recording the statement of the witnesses and after 5 completion of the investigation filed charge sheet against the accused for the offences stated above.
5. Thereafter the learned Special Judge / Prl. District & Sessions Judge Raichur has framed the charge against the accused for the offences punishable under sections 7, 13(1) (d) r/w section 13(2) of Prevention of Corruption Act 1988. The accused pleaded not guilty and claims to be tried. The accused was on bail during the trial.
6. Thereafter words, prosecution examined eight witnesses as PW1 to PW8, got marked thirty documents as Exs.P1 to Ex.P30 and got identified nine material object as M.Os.1 to 9 and closed its side evidence.
7. The statement of accused as required U/sec.313 of Code of Criminal Procedure was recorded. The accused denied the incriminating evidence 6 appearing against him in the evidence of prosecution witnesses. Accused has not chosen to lead any defense evidence, but got marked one report as Ex.D.1.
8. After hearing arguments, the learned Special Judge / Prl. Sessions Judge Raichur acquitted the accused for the offences punishable under Sections 7 and 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act 1988.
09. Aggrieved by the said acquittal, the accused appellant/State has preferred this appeal on the following grounds:-
a) That the acquittal of the accused is not properly appreciating the evidence and materials on record and it has resulted in miscarriage of justice.
b) The reasons assigned by the learned Special Judge while passing the order of acquittal is not justifiable.7
c) The assessment of the evidence of prosecution by the trial court is quite contrary to the Indian Evidence Act.
d) The evidence of hostile witnesses cannot be brushed aside.
e) The bribe amount was seized from the possession of the accused. That fact is proved beyond all reasonable doubt.
f) There is a presumption under section 20 of Prevention of Corruption Act. The accused has not rebutted that presumption.
With these main grounds the appellant/State prays to convict the accused by setting aside the impugned judgment of acquittal.
10. Heard Sri.Subhash Mallapur Special Public Prosecutor for State/ Lokayukta and Sri. S.V.Deshmukh learned counsel for the respoondent/accused.
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11. Sri.Subhash Mallapur learned Special Public Prosecutor argued that, the accused has demanded an amount of Rs.20,000/- from the complainant for release of his vehicle as illegal gratification and there is evidence of PW-2-Viresh that there was a demand of amount by the accused. The evidence of PW.2 corroborates with the evidence of PW.8-Balaraju about the case of the prosecution. Further learned Spl. Public Prosecutor argued that, all the panchas have supported the entrustment panchnama. The other prosecution witnesses have supported the prosecution case. The bribe amount of Rs.20,000/- was recovered from the accused and recovery is proved. The entrustment panchnama/Ex.P.6 regarding seizure of amount and changing of phenolphthalein sodium carbonate solution into pink colour when the hands of accused were dipped in the solution is proved. The presumption arises that the 9 accused for release of the vehicle of complainant has demanded illegal gratification which is proved beyond all reasonable doubt by the evidence of prosecution witnesses. With these main arguments the learned Spl. Public Prosecutor prays to convict the respondent /accused.
12. Per contra, Sri.R.V.Deshmukh learned counsel respondent /accused argued that the acquittal of respondent by the trial court is just and proper. In fact no amount was received by this respondent/accused. There is no evidence to show that, this respondent has demanded any amount. Mere recovery of the amount without any connection or demand is not a ground to convict the accused. The reasons given by the trial court for acquitting this respondent are just and proper. The learned Spl.Judge / Prl. District & Sessions Judge Raichur has rightly come to the conclusion that, there is no involvement of 10 this accused in the bribe amount. Somehow he has been falsely implicated but rightly acquitted by the trial court. So he prayed to dismiss the appeal.
13. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
01. "Whether prosecution proved beyond the reasonable doubt that on 03-03-
2008 in the morning at at 7.00 a.m., in the Dulkhed Check post respondent/accused being a public servant demanded and accepted the amount of Rs.20.000/- from the complainant Yellappa for releasing the concrete mixing machine loaded in the lorry bearing No.MH-22/N-256 and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act 1988?
02. "Whether prosecution proved beyond the reasonable doubt that accused /respondent being public servant 11 working CTO at Dulkhed Check Post committed the offence of criminal misconduct by corrupt or illegal means obtaining an illegal gratification of Rs.20,000/- from the complainant Yallappa releasing the concrete mixing machine loaded in the lorry No.MH-
22/N-256 and thereby committed an offence punishable under section 13(1)
(d) r/w sec.13(2) of the Prevention of Corruption Act 1988?
03. Whether the Judgment of acquittal of learned Sessions Judge against accused is perverse, illegal and not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this court?
14. My answer to the above points are as under
for the reasons given below.
15. The undisputed contentions of this case are that, the accused was working as Inspector Commercial Tax Office at Dulkhed Check Post and he was on night 12 duty on 02-03-2008 from 8.00 p.m., till 8.00 a.m. on 03-03-2008. It is also not disputed that, PW.3 Irappa and PW.5 Yallappa Maddikar were also on night duty at the relevant point of time. It is also not disputed that, lorry bearing Reg. No.MH-22/N-256 was loaded with concrete mixing machine came from Maharashtra side. It is also not disputed that, when the said lorry came morning at 7.00 a.m., at Dulkhed Check Post, the Post authorities checked the said lorry and informed the complainant to pay penalty /tax. It is also undisputed that, though the complainant stated that, it is PW.5- Yallappa Veerapa Maddikar who demanded illegal gratification of Rs.20,000/-. But he is not made as accused in this case. On the other hand, said Yallappa Veerappa Biradar is made as witness as PW.5, wherein FIR /Ex.P.27 he was made as accused.
Ex.P.1/complaint was registered on 03-03-2008 at 4.30 p.m., against two accused persons i.e., PW.5 as CTO as accused No.1 and Biradar Inspector as accused No.2. 13 But the charge sheet was filed against this accused /Subhash Biradar only. The FIR was registered as per Ex.P.27. In the charge sheet it is shown that, there is no evidence against accused No.1 and his name was removed from the charge sheet. In the light of these undisputed contentions let me examine the evidence of the prosecution witnesses.
16. PW.1 /Yallappa Kenchappa Payi is the complainant who set the criminal into motion. In his evidence he has stated that, he lodged the complaint to the Lokayukta police as per Ex.P.1. On perusing Ex.P.1 it indicates that, it is the PW.5 Yallappa Veerappa Maddikar CTO who told the complainant that if he gave an amount of Rs.20,000/- as illegal gratification then they will release his concrete mixing machine vehicle. Then the complainant expressed his inability to pay the amount instantly but informed that he will bring the amount from his village. Then PW.5 Yallappa Maddikar told the complainant to bring the amount to Bijapur 14 and gave his mobile number. So Ex.P.1 clearly indicates that, it is PW.5 who demanded the amount and who gave him mobile number.
17. In his examination in chief PW.1 has stated that, at Dulkhed Check Post the accused and other person by name Yallappa Maddikar told that, he has to pay penalty of Rs.40,000/-. They did not release the vehicle. PW.1 has further stated that, then he went to Lokayukta police lodged complaint as per Ex.P.1. There police conducted entrustment panchnama and secured panchas and asked the complainant to get the person over phone, PW.1 called the accused over phone and accused informed that, he is in Deepak Hotel at Bijapur opp: to KSRTC bu-stand. The accused came there, himself and four police and panchas were along with him, PW.1 told the accused to take the amount. The accused started counting the amount, immediately Lokayukta police caught hold the accused and took him 15 to Lokayukta Police station. He has seen the photos Ex.P.2 to Ex.P.5 and identified material object No.1 and panchnamas as per Ex.P.6 & Ex.P.7. Then the police took him to the Check Post and released the vehicle.
18. But in the cross-examination PW.1 has stated that, it is the PW.5 Yallappa Veerappa Maddikar who told him to pay the fine. In fact PW.1 sent the accused to check the vehicle. PW.5 Yallappa Veerappa Maddikar took him to the office and told him to pay the penalty of Rs.40,000/- out of the value of Rs.80,000/- of machine he assessed 25% as penalty and asked the complainant/PW.1 to pay Rs.20,000/- and also issued notice to him in this regard. PW.1 did not take the notice, but he came to the Lokayukta Police and informed PW.8 Balaraju Inspector in this regard. The said Inspector enquired with the Check Post and spoken to PW.5 Yallappa Veerappa Maddikar and the phone number of the accused might have been collected by 16 PW.8 from PW.5 and told the complainant to keep Rs.20,000/- and he will get release the vehicle and machine. PW.1 clearly admitted that, accused has not demanded him any illegal gratification before coming to Lokayukta Police. Ex.P.1 was written as dictated by PW.8 by the staff and it was not readover to him. Even PW.1 has stated different version that, when they went to Deepak Hotel accused was also present there and accused was taking tea. There were other customers. Then the complainant went there and informed the accused that he is paying the amount, but accused told him to pay the amount in the office and get release the vehicle. But he forcibly put the amount in the pocket of the accused. Immediately the Lokayukta Police came their, took the amount.
19. The evidence of PW.1 clearly gives gobye to the prosecution case. The prosecution has not treated him as hostile witness, cross-examined or re-examined him. His evidence has remained as it is. The basic 17 ingredients of the offence i.e., "demand of illegal gratification and acceptance of the amount as illegal gratification" falls flat on the ground. Even if Ex.P.1 and evidence of PW.1 are considered as a whole it is clearly evident that, absolutely there is no evidence against this accused to indicate that, it is he, who demanded money from PW.1 as illegal gratification. On the other hand, it is in the complaint /Ex.P.1 and the evidence of PW.1 that it is the PW.5 Yallappa Veerappa Maddikar who told the complainant/PW.1 to give the amount for release of the concrete machine vehicle. But said Yallappa Veerappa Maddikar is not made as an accused, he is made as witness for the prosecution for the reasons best known to the Investigating Officer. That itself creates doubt about the very investigation done by the Investigating Officer. Mere recovery of the amount is not sufficient to prove the ingredients of offence of Prevention of Corruption Act as alleged against the accused. There must be evidence regarding 18 demand and there must be evidence for acceptance of amount as illegal gratification. Here it is in the evidence of witnesses that, the value of the concrete machine is at Rs.80,000/- and 25% of it was assessed as penalty to be paid and that penalty tax is Rs.20,000/- what the complainant is stating as illegal gratification. Therefore the evidence of PW.1 and Ex.P.1/complaint makes the prosecution case doubtful.
20. PW.2 Viresh Mallappa Alamatti is a witness for entrustment panchnama and also for conducting trap panchnama. But in the cross-examination he has stated that after they went to Hotel the accused came there. But according to PW.1 the accused was already in the Deepak Hotel and was taking tea. The person, in- charge or owner of the said Hotel was not examined. PW.2 has further stated that, accused and PW.1 sat on a table and he sat on another table. Then the accused told the complainant that, his Officer Yallappa Veerappa 19 Maddikar had told him take Rs.20,000/-. Accordingly the PW.1/complainant gave Rs.20,000/- to the accused. PW.2 has not stated that either accused demanded any amount as illegal gratification. PW.2 has also admitted that, accused told that, only at the instructions of the higher officer he is taking penalty amount.
21. In the cross-examination PW.2 admitted that he do not know about the talks between the complainant and the accused over phone. So he do not know whether the complainant asked the accused to give amount in the said Hotel. His evidence does not corroborate the evidence of PW.1 or charge. Even PW.2 do not know against whom the complaint was lodged. But the complainant and Inspector were talking about one Yallappa Veerappa Maddikar. So that itself indicates that, either Investigating Officer has readover the complaint to this witness nor the complainant has informed him anything about the accused. PW.2 has 20 stated that only they were discussing about one Yallappa Veerappa Maddikar who is PW.5 and no where he has stated that, they were discussing about this accused. So the entire case of the complainant is that, it is one Yallappa Veerapa Maddikar who demanded the amount and he told him to pay the fine amount in the hand of this accused. Accordingly the accused has received the said amount. Therefore the evidence of this witness also creates doubt about filing of the charge sheet against this accused and making PW.5 as witness.
22. PW.2 has stated that, he was not able to remember whether accused was already in the Hotel when they went there. So this creates doubt whether entrustment panchnama was conducted as stated. But PW.2 has admitted that, accused was already sitting in the Hotel. That itself creates doubt about the theory of prosecution that it is the complainant who asked him to come near Deepak Hotel. Thereafter the accused came 21 there. This all appears to be a story created by the prosecution. PW.2 has also stated that, the accused has not given any statement in his presence. Even he do not remember whether the police have taken them to Lokayukta Police and made them to sit in a room. Even no macro cassette recorder was given to them when they went for trap. He do not know from where this police secured the panchnama materials and he do not verify whether they have washed vessels before preparing solution of sodium carbonate test at the instance of Lokayukta Police. A suggestion is made to him that, he being a Government servant it appears that, he may be prosecuted if he did not support the prosecution, he is giving false evidence, but he has denied it. So the evidence of PW.2 will not help the prosecution to prove the demand or acceptance of illegal gratification by the accused.
23. PW.3 Irappa Gundappa is working as SDA in Asst. Commercial Tax Office. He has stated that, on 22 02-03-2008 from 7.00 p.m., to 8.00 a.m., on, 03-03- 2008 he was on duty at Dulkhed Check Post. PW.5 Yallappa Veerappa Maddikar was working as Inspector and accused was also working as Inspector at Dulkhed Check Post. On 03-03-2008 in the early morning a lorry bearing Reg. No.MH-22/N-256 loaded with concrete mixing machine came from Maharashtra side, but there were no documents. So he informed the same to the accused. His evidence clearly indicates that, the complainant did not produce any documents about the said lorry.
24. Similarly PW.4 Chandrashekhar Talwar has stated that, Lokayukta Police have collected Ex.P.16 to Ex.P.23 documents from him. In the cross-examination he has stated that, he has not released the vehicle bearing Reg. No.MH-22/N-256 nor he has given any statement before the police.
25. PW.5 Yallappa Veerappa Maddikar was the Commercial Tax Inspector. He has stated that, when the 23 lorry bearing No.MH-22-N-256 of the accused came to check post, he enquired complainant /PW.1. He produced the Letterhead issued by MIDC Nanded. There was no mention of serial number, consignee number or TIN and there was no address. Then he verified the concrete mixing machine and found it was a new machine. PW.5 informed the complainant that, he has to pay penalty of Rs.20,000/-. Even he went to give notice in this regard, the accused did not receive the notice. Then on the same day evening at 4.00 p.m., the complainant telephoned him stating that, he has brought the fine amount and asked him to receive the said amount. Then he told the complainant to pay the said fine amount in Dhulked Check Post as he was at Bailhongal.
26. In the cross-examination PW.5 has stated that, Ex.P.23/goods consignment endorsement is in his writing. He has clearly stated that, unless the complainant pays the fine amount mentioned in the 24 Ex.P.23 the vehicle cannot be released. He has further stated that, till today the complainant has not paid the find amount. He has denied the suggestion that, he has informed the complainant to pay the fine amount in the hands of the accused. He has admitted that, on 03-03- 2008 PW.8 Balaraj Police Inspector telephoned him. The prosecution has not treated him as hostile witness.
27. On the other hand the evidence of PW.5 clearly indicates that, it is he who detained the vehicle, issued notice to the complainant and asked him to pay the penalty of Rs.20,000/- and get released the vehicle. Even issuing of Ex.P.23/goods consignment endorsement is admitted by him. Therefore, this itself creates a doubt about the prosecution case regarding the charge leveled against the accused. Therefore, the entire case of the prosecution falls flat in view of the evidence of PW.5. It is the evidence of this witnesses that, as the complainant did not produce the 25 documents required under the act for release of the vehicle, his vehicle was detained and he was directed to pay fine as per act and rules. But the complainant went to Lokayukta Police and informed the said fact and lodged complaint as per Ex.P.1 and this Subhash Biradar who was working as Inspector at the relevant point of time was made as accused. Therefore, the evidence of PW.5 clearly falsifies the charges leveled against the accused.
28. PW.6 Shrikant Mahalingappa Wali was working as Asst. Engineer in PWD Bijapaur. He has stated about preparing sketch map of scene of offence as per Ex.P.25.
29. PW.7 Prakesh has stated regarding issuing of prosecution sanction order against the accused as per Ex.P26. He has stated that there is an allegation in the complaint against CTO Yallappa Veerappa Maddikar. He has admitted in his cross-examination 26 that, he obtained explanation from the accused at the time of giving evidence. He has admitted that, he has not brought the file concerning sanction to prosecute the accused at the time of giving evidence. He has also admitted that he has seen Ex.P.23 the goods consignment endorsement. In Ex.P.23 the tax official have mentioned the defects of the vehicle. He has also admitted that, if those defects are rectified then only the Officer who was in-charge in check post at that time has got power to release the vehicle. He has admitted that there is an endorsement on the back of Ex.P.23 about the release of the vehicle. He has stated in the release order it is simply mentioned as goods vehicle. But there are no records and he do not know whether the vehicle was got released as per the directions of Lokayukta police. He has also admitted that, the accused has stated that, as it was a goods vehicle penalty amount of Rs.20,000/- was to be paid. But till today PW.7 know whether the said penalty amount was 27 paid. PW.5 also admitted that, in Ex.P.24 there is no mention of consignment or purchaser or registration number. He has also stated that, whether the vehicle shall be released in such a condition or not depends upon the situation. So the evidence of PW.7 also indicates that, he has not properly applied his mind before granting sanction to prosecute the accused. Therefore the evidence of PW.7 clearly indicates that somehow the accused was implicated in this case.
30. PW.8 Balaraju is the Investigating Officer. He has stated about the investigation done by him. The evidence of PW.8 is not corroborated by the evidence of PW.2, Ex.P.6/Entrustment panchnama, or the evidence of sanctioning authority. He has also stated that, he has verified Ex.P.23/ Goods consignment endorsement and Ex.P.24 Bill issued by Gous Engineering Works and Fabrication Nanded. He also verified Ex.D.1 copy of report submitted by accused. In Ex.D.1 the accused has 28 clearly given report in detail, but inspite of that, he has filed charge sheet against this accused. No proper reasons are assigned as to why charge sheet is not filed against PW.5 Yallappa Veerappa Maddikar when there is already FIR and allegation that it is PW.5 who demanded the amount. It is also in the evidence of prosecution witnesses that, before conducting panchnama PW.8 Balaraju talked with PW.5. If he has discussed with PW.5 then there was no necessity to register the F.I.R. against him and file charge sheet against this accused.
31. On perusing the evidence of prosecution witnesses it is evident that, there is no corroboration in the evidence of the prosecution witnesses about the charge leveled against the accused. On the other hand, the evidence of prosecution witnesses is full of contradictions and inconsistent about the material particulars regarding appreciation of evidence in these type of cases.
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32. The Hon'ble Supreme Court of India in case of (N.Sunkanna Vs State of Andhra Pradesh) in Criminal Appeal No.1355 of 2015 (Arising out of SLP (Crl.) No.2958 of 2011) dated: 14-10-2015 has held at para No.6 as under:
6. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW-3 though in the examination-in-chief stated so, in the cross-
examination turned round and stated that the accused never asked any monthly mamool and he did not pay Rs.50/- at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed-over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) 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. It is only on proof of acceptance of illegal gratification that presumption can be 30 drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724]. In the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the appellant under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released.
33. Further the Hon'ble Supreme Court of India in case (Dashrath Singh Chauhan Vs Central Bureau of Investigation) reported in Criminal Appeal No.1276 of 2010 dated: 09-10-2018 has held at Paragraphs Nos.8, 9, 10, 18, 19, 20, 23, 25, 26, 27, 29 & 32 as under:
1) to 7) ....
8) By judgment dated 31.05.2001, the Trial Court (Special Judge) held that the prosecution failed to prove the case of any conspiracy between the appellant (A-1) and co-accused Rajinder Kumar (A-2) in relation to the offences in question and, therefore, the charge of conspiracy against them under Section 120-B IPC was held as not made out. Both the accused were, therefore, 31 acquitted of the charge of conspiracy under Section 120-B IPC.
9) The finding on this issue recorded by the Trial Court in Paras 14 and 16 reads as under:- "14. In the case before us, there is not even slightest evidence about the existence of a criminal conspiracy between A-1 and A-2. Once this had been established, only then we could have read the statement of both the accused, not only against each one of them, but against the other of them and also for proving the existence of criminal conspiracy as such.
16. There is no such situation before us. There are certain statements only. In any case, once conspiracy is not established, even the statement, made by A-1 against A-2 are vice-versa, cannot be read in evidence."
10) The Trial Court then disbelieved the evidence of the Investigating Officer-Mr. Kaul (PW-6) on the ground that he himself was of a doubtful integrity because the High Court, in one case, had directed registration of a bribe case against him and, therefore, his evidence in this case cannot be relied on (See Para 17 of the judgment of the Trial Court) but the Trial Court believed the evidence of shadow witness (PW-2 -Mahinder Lal) for holding the appellant guilty of the offences punishable under the PC Act.
11) to 17) .....
18) In the second place, the learned counsel contended that the appellant's conviction is based only on the evidence of a shadow witness (PW-2) whereas the evidence of the Investigation Officer, Mr. Kaul (PW-6) was not believed due to his doubtful integrity.
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19) It was his submission that the basic requirements in such a case, namely, proving of "demand of bribe and its acceptance by the appellant" was not proved much less beyond reasonable doubt. It was urged that at best what the prosecution was able to prove was the "demand" of bribe made by the appellant to the Complainant but not "its acceptance" because the evidence, in clear terms, established coupled with the findings of the Courts below that the appellant did not accept the money but it was accepted and recovered from the possession of Rajinder Kumar(A-1).
20) It was, therefore, urged that since the acceptance of bribe money was not proved qua the appellant and nor it was proved that Rajinder Kumar accepted it for and on behalf of the appellant, the appellant's conviction under any of the provisions of the PC Act much less under Sections 7, 13(2) read with Section 13(1)(d) was not legally sustainable and hence it deserves to be set aside.
21) .....
22) .......
23) It is not in dispute that the prosecution had framed three charges against the appellant and co-accused-Rajinder Kumar and two out of the three charges, namely, Charge Nos. 1 and 2 were based on the conspiracy. It is also not in dispute that the Trial Court, on appreciation of the evidence, held that the prosecution failed to prove the charge of conspiracy under Section 120-B IPC against the appellant and Rajinder Kumar (A-1) and accordingly acquitted both of them from the said charge. It is also not in dispute that so far as co-accused- Rajinder Kumar (A-1) is concerned, he was acquitted from all the charges framed under the PC Act. It is also not in dispute that the State neither challenged the clean acquittal of Rajinder Kumar and nor challenged 33 the part acquittal of the appellant in the High Court by filing any appeal. This, therefore, attained finality.
24) .......
25) In our considered opinion, when the charge against both th accused in relation to conspiracy was not held proved and both the accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the appellant too was entitled for his clean acquittal from the charges under the PC Act.
26) It is not the case of the prosecution that the appellant had conspired with another person and even though the identity of the other person was not established, yet the appellant held guilty for the offence under Section 120-B IPC. On the contrary, we find that the case of the prosecution was that the appellant conspired with one Rajinder Kumar to accept the sum of Rs.4000/- as illegal gratification from Arun Kumar-the complainant.
27) Once Rajinder Kumar so also the appellant stood acquitted in respect of the charge of conspiracy and further Rajinder Kumar- co-accused was also acquitted from the charges under the PC Act, the charges against the appellant must also necessarily fall on the ground. (See Para 15 Bhagat Ram vs. State of Rajasthan, (1972) 2 SCC
466).
28) ........
29) It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the appellant". As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but 34 the money was accepted and recovered from the possession of Rajinder Kumar-co-accused (A-1).
30) .......
31) ........
32) Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720)
34. The Hon'ble Supreme Court of India in case (State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede) 2009) ACR 956 in Criminal Appeal No.1350 of 2009 (Arising out of SLP (Crl.No.211 of 2006) has held as under:
A...
B....
C. Prevention of Corruption Act, 1988 - Sections 7(1) and 20- Prosecution for demanding and accepting illegal gratification - Demand of illegal gratification is a sine qua non for constitution of an offence under provisions of the Act
- For arriving at conclusion as to whether all ingredients of an offence, demand, acceptance and recovery of amount of illegal gratification have been satisfied or not Court must take into consideration the facts and circumstances brought 35 on record in their entirety- Presumptive evidence, as is laid down in Section 20 must also be taken into consideration - But, then in respect thereof, standard of burden of proof on accused vis-à-vis standard of burden of proof on prosecution would differ - Before, accused is called upon to explain as to how amount in question was found in his possession, foundational facts must be established by prosecution - Even while invoking provisions of section 20, court is required to consider the explanation offered by accused, only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubts.
35. The Hon'ble Supreme Court of India in case of Bhagat Ram V/s State of Rajasthan, State of Rajasthan Vs Ram Swaroop (1972) 2 Supreme Court Cases 466 in Criminal Appeal Nos.36 of 1969 and 202 of 1970 has held as under:
Penal Code 1860 ( 45 of 1860) - Section 120 B - Scope - Two persons charged - One acquitted - whether basis of charge under section disappears :
Supreme Court - Practice - Concurrent findings of Trial Court and High Court - Supreme Court - Not to assess the evidence afresh.
Bhagat Ram, a police Inspector of Ram Swaroop were tried by the Special Judge under Section 120-B, I.P.C for conspiring to extort bribe. Charges were also framed against Bhagat Ram for offences under sections 161, 218, 347 and 389 IPC, as also section 5(1) (a) read with Section 5(2) of Prevention of Corruption Act. Both the accused persons were acquitted of all the charges by the Special Judge. The Division Bench of the High Court dismissed the State's 36 appeal against acquittal of Ram Swaroop. The appeal of State against Bhagat Ram in so far as it related to his acquittal for offences under sections 347, 218 389 and 120-
B IPC was also dismissed. There was, however, difference of opinion between the two Judges of the Division Bench on the point as to whether the acquittal of Bhagat Ram for offences under sections 161, IPC and 5(1) (a) of the Prevention of Corruption Act should be maintained. The case was then placed before a Single Judge under Section 429 Cr.P.C. The Single Judge held that both the accused persons were guilty of offence under section 120-A punishable under section 120-B IPC. IN view of the decision of Division Bench, Ram Swaroop's acquittal was not set aside. But acquittal of Bhagat Ram for offences under sections 120-B, 218 and 347 IPC was set aside by him. Bhagat Ram having been found guilty for offences under sections 120-B, 161, 218 and 347 IPC filed an appeal before Supreme Court for his conviction and sentence given by the Single Judge. The State also filed an appeal against the acquittal of Ram Swaroop.
Held:
i) It is not permissible for the third Judge to reopen the matter and pass a conviction order for offences under sections 347, 389 and 120-B IPC. The matter referred to the third Judge was only for offences under section 161 IPC and section 5(1) (a) of Prevention of Corruption Act, and the third Judge could go only into that aspect of the matter and comes to conclusion.
Where an express order has been made by the Division Bench upholding the acquittal for offences under sections 120-B, 218, 347 and 389, IPC and the State appeal to that extent has been dismissed, the decision of the Division Bench was binding on the third Judge and it was not within his competence to reopen the matter and pass a conviction order.
The order of acquittal passed by the Division Bench, unless set aside in appeal to the Supreme Court was binding 37 and conclusive in all subsequent proceedings between the parties.
ii) The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the same wholesome principle (para 12 13 and 14 Samba Sivam V Public Prosecutor, Federation of Malaya 1956, AC 458 approved. Pritam Singh V State of Punjab AIR 1956 SC 415 relied on.
iii) The charge under section 120-B IPC relates to conspiracy of more than one person involved in the charge, Where only two persons are charged and one of them has been acquitted under the section, the basis of the charge under section 120-B IPC, disappeared against the other person. It was not the case of the prosecution, that Bhagat Ram conspired with another person and even though the identity of the other person has not been established -
(a) Bhagat Ram would still be guilty for the offence under section 120-B IPC
(b) Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy must necessarily fall to the ground.
(iv) Where there are concurrent findings of the Trial Court and the High Court and nothing has been brought to the notice of the Supreme Court to justify interference, no fresh appraisement of the evidence record would be under taken by the Supreme Court.
Appeal allowed in Criminal Appeal No.36 of 1969 and dismissed in Criminal Appeal No.202 of 1970.
36. Further the Hon'ble Supreme Court of India in case of V. Venkata Subbarao Vs State, represented by Inspector of Police, A.P - AIR 2007 SC 489 in Criminal 38 Appeal No.970 of 2000 dated: 12-12-2006 wherein the Hon'ble Supreme Court of India has considered the presumption under section 20 of Prevention of Corruption Act and held that in the absence of proof of demand the question of raising presumption under section 20 of Prevention of Corruption Act would not arise. In paragaph No.12 it is held as under: -
12. Submission of learned counsel for the state that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:
20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under section 7 or section 11 or Clause (a) or Clause (b) or Sub section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.39
37. Further the Hon'ble Supreme Court in case of M.R. Purushotham Vs State of Karnataka, represented by reported in 2014(6) Kar. L.J 32 (SC) in Criminal Appeal No.1578 of 2011 dated: 24-09-2014 held that, mere possession and recovery of currency notes from accused without proof of demand will not bring home offence under section 13(1) (d) of "PC Act".
38. So in the light of the principles stated in the above referred decisions if the present appeal is considered, then in my considered view the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt.
39. I have perused the Judgment of the learned Sessions/Special Judge. The learned Sessions /Special Judge has discussed in detail the evidence of the prosecution witnesses by framing proper points for consideration. The learned Sessions /Special Judge has pointed out the material discrepancies and 40 contradictions in the evidence of prosecution witnesses and also relied upon the decision of the Hon'ble Supreme Court regarding demand of illegal gratification in case of State of Punjab Vs Madan Mohan Lal Verma reported in III (2013) CCR 458 (SC) wherein at para No.7 it is held as under:
The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when 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 a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, 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 Act 1988. 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 and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain 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. In a proper case, the court may look for independent corroboration before convicting the accused person.41
So based on the evidence of PW.1 and PW.5 and also Ex.P.1 and other evidence the learned Sessions / Special Judge has come to the conclusion that, mere receipt of the amount by accused is not an offence and the learned Sessions /Special Judge has rightly come to conclusion that, the prosecution has failed to prove the demand and acceptance of amount of Rs.20,000/- as illegal gratification from the complainant by the accused. The learned Sessions/Special Judge has rightly observed that, there is no witnesses regarding the demand of illegal amount and come to the conclusion that, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. It is settled principle of law that, in an appeal against Judgment of acquittal of accused, the first appellate court will not interfere the Judgment unless it is shown that Judgment of trial court is perverse, illegal and not based on settled principles of law regarding 42 appreciation of evidence in this type of allegation. Even if two views are possible, the view favourable to the accused will have to be accepted. In view of the discussion made above, no grounds are made out to reverse the finding of acquittal against accused. The appeal deserves to be dismissed.
Therefore, I answer Point Nos.1 to 3 in the Negative. Accordingly I pass the following:
ORDER Criminal Appeal is dismissed.
The Judgment of acquittal passed by Special Judge/Prl. Sessions Judge Bijapur in Special Case (Lok) No.8 of 2010 dated: 12-11-2013 is hereby confirmed.
Send back the records of the trial court forthwith.
Sd/-
JUDGE MNS.