M Appanna S/O Late Muddamallappa vs The State Of Karnataka on 17 March, 2010

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Karnataka High Court

M Appanna S/O Late Muddamallappa vs The State Of Karnataka on 17 March, 2010

Bench: Jawad Rahim

1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 17*" Day of March 2010
BEFORE

THE HON'BLE MRJUSTICE JAWAD    

CRLA. NO. 1 98/2004

BETWEEN:

MAPPANNA, _
S/O LATE MUOOAMALLARPA, .. I
AGED ABOUT 44 YEARS,   .
occ; ASST. EXECUTIVE ENGINEER,
KARNATAKA STAT.E_cONS1"RucT1ON
CORPORATION L_T0.;;-- _   
R/O NO.8, 'v1SHAI<A",.,'2"'3E.cAOSS;EEv._   .
SAPTHAGIRI EAvO0_T,'eT" MAIN 'ROAD; .. 
VIDYARAI\!_YA.PURA, '  _  -  *
BANGALORE,.+-'S60. 0:9?"  _ 
(NOW-INv 4JUDv.I_CIA L,jC_US_TO--DY)»
   .    ..APPE-ELLANT
____  '*~,_V"[31§g_SVri.R18,NaiL:,__$r._.COunselfor
  Sr§.'H.S'.~C.E1andrarh'OulE, Adv.)

TH E STATE '0 F ";<ARN'ATA KA,
_ BY THE POLTCE INSPECTOR,
-4 KA.RNATAl<A LOKAYUKTHA,
 SANGAEORE'0~I--v1'S1ON,
B'ANGA«L:ORE.
    ..RESPONDENT

.IB~'y Sri. S.G.Rajendra Raddy, Adv.] THISAT-::RL.A rs FILED UNDER SECTION 374(2) CR.P.C AGAINSTSTHE ORDER DATED 29--01-2004/ 10-02-2004 PASSED BY THF._"SPECIAE_ JUDGE, BANGALORE URBAN AND RURAL 'STRICT, BANGALORE IN SPE_.CC.NO.196/2002 CONVICTING TAPPELLANT -- ACCUSED FOR THE OFFENCES UNDER SECTIONS 7, 13(1) (Ci) R,/W SEC.13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND SENTENCING HIM TO UNDERGO I -~R.1 FOR FOUR YEARS AND TO PAY A FINE OF RS.25,000/-- AN0 I.D., TO UNDERGO ADDITIONAL R.I. FOR TWO MONTHS FOR THE ORFFENCE U/S 13(1) (d) R/W SEC.13(2) OF PC ACT AND FURTHER SENTENCING HIM TO UNDERGO R.I FOR THREE MONTHS AND TO PAY FINE OF RS.10,000/- AND I.D., TO UNDERGO ADDITIONAL PERIOD OF R.I. FOR 15 DAYS FOR THE aﬁjw 2 OFFENCE U/S/ 7 R/W SEC 13(2) OF PC ACT ALL THE SENTENCES TO RUN CONCURRENTLY.

THIS CRLA COMING ON FOR HEARING "ri-iis.4ji*:A}i,_:"ri--iE COURT DELIVERED THE FOLLOWING: _ The convicted accused is_in appeai"~a'_g.ai'nst.Vthe"

judgment in spi.cc N0.196/2002C:,da:t'edii'2S»..i;?.t3O'4Vb-nA.'tti_e file of the Special Judge;CV_B=a_ngal0.re Urba'nA~{ﬂa«n.dV .:RuCral-C' Districts, convicting him offence.' under the provisions of Sectionread %.iw:iCthi~.Eect.igon 13(2) of the Prevention of CG!'l'UptiQi"l"A.Ci', i9_88 "{i'or;"sho'rt 'the Act') and the co.n'seq.uent se§nterice*--.pass'ed~.

2.C"'--ijiela_rdVV"_S'ri:.R.§_;il\iaik, learned Senior Counsei appealririg for"the'appellant and Sri.S.G.Ra3'endra Reddy, i learned Standing counsel for the respondent -~ Lokayuktha. V 3.?"-l3.efo".=eV_iI advert to the contentious issue raised by both brief reference to the substance of the a|lgega'ti,on on which the appellant was arraigned, tried and V.C'VC-.gLiltif'i7niately fou nd guilty:

The appeliant is a combatant employee of State Government working as a Resident Engineer in Karnataka &J4/ 3 State Construction Corporation Ltd. He was, during his tenure, responsible for accepting and sanctioning the amount claimed by the Contractors in their bills reiliat-inlg.Vto various civil contracts.

During the period 1998-2oo':,,pw.2-iiirissﬁjriegow-aa,...ac"V it Civil Contractor had succeeded. e'ie7ct,ri'ca:l contract work and was red_ui.red comp'!'e'tei._'~the .5wo%rk~.V:l' within the stipulated period. EMD in respect of each contractilisoi far was entitied to deduct 5% of the aisfslecurity deposit.

He obtained by him and for payment to the accused who in the hierarchy. The appel'lan.t_appe.a_V_rsV' to: have called his sub~ordinate one VLASri_.Ray'inciranath, Assistant Engineer, and asked him to l"'pre'palAre'ti_iie__m:;e~a'surement book. The value of the contract and"---the.fentitlement was quantified. A. Despite such bills having been submitted, the 'aplpellilant appears to have postponed sanctioning the bills "and when PW.2~Krishnegowda requested him to expedite, he demanded Rs.50,000/~ firstly, for returning the PS8 of Rs.80,000/-- and then he asked for his share of 4 Rs.30,000/-- on the bill payment. In respect of two bills for Rs.60,000/--, the accused demanded 3% appI'_4o.)V<V_in..'1_:'c'.-':t_ely Rs.2,000/- and in all he raised demand PW.2--Krishnegowda the compylainant ."'exp.res'sed".V it inability but had to ultimately acceded pay Rs.22,000/--. The accusedyon Vpa.ymentcv'ol'ltlte,amounts:' agreed to pass the bills. The_corn_pl~a\»inant siornehvbw felt he was being exploited be«l_ng;,j_a3 govern_ment servant the appellant was not enti:tle~d.._t:o get"ls_u'ch»_ iVlg:leg"a'.l gratification. He theref':>re,~ ap:proac~he'd l3y_".--S.__l5'_'_fof Lokayuktha on a complaint' 'miairkedfl-§a's a_'nd'lsought action. Acting on the report._ so.Vsubmitvted-,,::'preliminary steps were taken. Complainant wasgas*kel'd*~:*d arrange Rs.10,000/-- cash which gysimearedlllw"with Phenolphthalein powder and drawn incorporating the details of the notes. _.'l'w_ols:;witnesses were summoned which includes PW.14~-llajanna to be the shadow witness during the trap. Afteij preparing the entrustment mahazar, the hand wash PW.2--Krishnegowda was collected and sealed as notes were delivered to him with strict instructions that the same should be given only on the demand made by the accused. PW.1--Rajanna was assigned the job of observing what all 5 transpires between the accused and the complainant and report back to the Investigating Officer.

complainant revealed that the accused had meet him the same day, the Dy.MSV.l? of _.i;o'k'ay'uktha'*.tool<" " if the complainant and PW.1--Rajann._a iFi"'€i.'te v'eh'i.cl"e anfd..s'er1t them to the office of the acc'us«e_d. lcept wyaitii.ng...for3 determined signal.

4. PW.1--Rajanna~.,_and'r"PW'.-.2;Krisghnegowda entered the office of the accused and i'e§tc'ha.n_g'eﬁV.salutation. When the accused §asE-:e_ci- the cornplai.na'n_t..asTfto whether he has brought theiVV'r.*1.on_ey,bg"he"'vvtendered Rs.10,000/~« and also cheque'for?Rs.'1'2,VOOVO/T91."jffhe accused asked him to keep thecurrency "notes invia file which the PW.2--i<rishnegowda anv;di.A..'thereafter the accused asked him to give the "baiagnlcet7fsi;ini[;o'r Rs.12,000/-- in cash and not through chetguev-.': .PW.1--Rajanna was made to sit in the same room it buet__4at"a.distance away beyond the Almirah. As soon as the 'accused received the money in the manner aforesaid '"PW.2--i<rishnegowda sent the pre--determined signal to the Investigating Officer through a message "

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5. In response to the message, PW.5--Dy.S.P along with two more witnesses rushed into the office of the accused disclosed their identity. The Dy.S.P asl{;ed'i..the complainant what transpired. Complainant _reﬁ}eal»eci!: he had entered the office at 1235 RM and'r'ri'et:.1t'hé"accused"" if and on demand made by the Rs.10,000/-- which the accus'ed«...recei'v-ed it by'V:o'pjen.i.n»g_:3a and kept the same in the took the hand wash of the Carbonate solution but the test" hresence of Phen0i9hth_a.fé,ihi:'::.:f§7!'le::}3c(:ll_%f3d::.4Vt§3V€éll out the file from the drawer.' to PW.5--Dy.S.P, in which the bait mofneyr of found. It was seized and thepfresence ofiléhenoiiphthalein on the other papers of the Viffile"w'as.fcolvlected through cotton swab and then washed in "'Sodivuxmvé:CaV.rbo'n'ate solution, which turned pink. Thus the notes rounded in the file were tainted notes sent by the .e,.fV:IAn:.iestig'ating Officer. The trap mahazar was drawn if "'i.nc0rporating the details and thereafter the accused was "arrested. The accused was questioned regarding the bills tendered by the complainant, which he produced and the (jib same were seized.

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6. In the backdrop of this, the Investigating Officer got the copy of the Attendance Register and somVe.,,_:other records and complained to the competent_..a:uth'o.ri,ty'.i-for grant of sanction. PW.4--A.Rangappa i\ia.ii'<','*=th:e:iVi~ari-agin'g'*ff"

Director examined the report of'»,the'"inivestigaltingViﬂfficer and being satisfied, granted'iVs'a.nctio"r.-to pro3e'cAute_,,hVin31. this manner the Investigatingltjfficer reached a conclusion that the accused has*i-_zc'ommit;i;evd"'*theA:"*offence punishable under Section 7i.and 1:.3~(?.):'wof'~th»e Kcvtva'n,.d""final report was filed.

put to trial, during which, the prosecutions all 5 witnesses and placed rel"i,ance.on .d_ocun*i:ents and 17 M.Os. Against tiieincriminating aspects in the evidence, that up the defence of denying the receipt of mo,,ney_.and:'..--allso denying the knowledge of the money put in his fi__le. The Learned Judge recorded findings, accepted V"*V'.,'prO$?.§cution evidence and convicted him, against which he Vb ., in appeal.

ﬂiib 8

9. Sri R.B.l\iaik, learned Senior Counsel would submit that from the prosecution papers it is evident that PW.2-- Krishnegowda was inimicai towards the accused--app'eliant and had with a view to take a revenge, filed and thus tendered false evidence. PW.1-Rajfa-nna['_ithe V' witness who was paraded to suppo"rt.vth_e of PW.2~--Krishnegowda has in his evidence, revealed c'er'tain--..g vital aspects clearly impact'I'n:g:"'i.the asse'rt.i'onV°,of"VPW.2-V Krishnegowda that .ti"ie jfhad devrfnainded and received money. He wiouilvdl"ifuiftheﬂ.submit that the prosecution ha*3««..fai|ect.!_ to the accused had dema:n__ded-- orV-'re«ceive'd..i_Tth_e money as illegal , gratification and prosecjutio'n"'ha's.:'al.so~--failed to establish that the money alleged to haveo_'_l5een found or recovered from the office of the handled by the accused or kept by the acitcuyseiii"'i_i.i.m§:evi'i. Lastly, he would submit that upholding evi"dence PW.2--Krishnegowda, there is no other V. su.ficie'nt evidence to establish the guilt under Section 7 or ' 'sfection 13 (2) of the Act.

10. Sri.Rajendra Reddy, learned Counsei for Lokayuktha relying on the prosecution evidence assertively 5&1"

contends that the prosecution has successfully established through testimonies of PWs.1 and 2 that the accuse.dl~had demanded and received Rs.10,G00/- from the- in furtherance of his earlier demand and""the'_ref'o.re,., the"

charge for the offence under S'ecti:=;>n..:'7 'of applicable. He would conte'n...d thatxthe d'ef'e,iic.eHo}f accused that he had not the money is fully falsified bait money was seized from his office and therefore establish that the moneysoEr'ec"e.itig:d illegal gratification. Negating appellant's counsel that there is no sAuff:icieAnt'~. establish the guilt of the accufseds, he 'su.bmits'that in view of presumption under the Act the burden is on the accused to establi's'h""_t.h_at;'the money found in his possession was not received lbylhim as an illegal gratification. He submits that V. presurnption being in favour of the prosecution, the burden ""was"A'heavy on the accused, which he failed to discharge. if ''''As regards the demand of illegal gratification is concerned, he submits that PW.2-Krishnegowda has clearly spelled out in his evidence the manner in which the accused had all 10 harassed him and failed to make payment of the bills despite the work having been completed. He submits that the evidence led in totality gives rise to onalvisgone conclusion and that conclusion is the guilt of and is totally inconsistent with his inno_ce,rjce.'-.e_e.:'Sev'er'a!._ citations are cited to gain supportzvto

11. Keeping in mind urged. sides, I have examined the reeords in sVuVep"p.l._e.m'e.ntation thereto and reappraised the evidence_V'as_it'i_s statugtoryfirst appeal. '1_2.Itispeitti'nenti.e_t'o...note certain facts, which are not in dispujtere -

_;"l"h.e compVl_a'ienanVt PW.2--Krishnegowda is a Contractor who obt.ained several contracts from the Karnataka Coen_s.tr'ucft_ivo_ni.§3o'rporation and was required to complete the assi-gnm:ent"'"'within the stipulated period. The complainant has admitted in his evidence that the accused was a elfeeesideent ﬁngineer of the Corporation and was responsible be "to ensure completion of work entrusted by the Corporation and also take over administrative functions. The complainant was issued with reminders calling upon him to ﬁlly 11 compiete the electrical work vide reminders and letters dated 27-04-1998, 17-09-1999, 18~12~2000 andVV_V0,,i~Q3- 2001. It is also not in dispute that the submitted the bills during his period in--"res'p_e,ct~::o'f,V it contract works covered by the letters referred"-to"Vasbo'vt,e*. PW.2-Krishnegowda has in hivsevidelr.-ce' digsciwolsejd..ofWh.avivng.:V:* submitted the bills for payndent giatrgictmtreroe said to be pending and the those bills marked Exs.P.S.to P.1:J.._. is whether the complainant, the amount in re5i3ect_ofE In this regard, the evidence is of importance and on scrutiny, PW.2-Krishnegowda in unegquivocalwterms' admitted that the accused had issued ihirn' radii nvotices as referred to above intimating that the co'nfjtract."worln{_'a'ssigned to him was incomplete and he was requireyd' to 'complete the work. To the said notices, PW.2- Ezfreishnegowda neither replied nor sent any reply reporting ""of"ha;ving completed the work. Though the notices issued him are from 1998~2001, but it is of importance to note that the alleged demand made by the accused is said to be three months prior to the date of trap. However, the at 12 sequence of events from the date of issuance of demand notice show that the bills were submitted..Vby'_:'i~the complainant 7 to 8 months prior to the date_.lVof"tlh_e---:tjra.p_}'_ It takes us back to the period when accus'ed:'wa's: if the notices asking the complainant toattompllete"thefwofrikr. In other words, on facts, it=is'~s_eenftha't while t,i1e.,aHceusved.,V:ir was calling upon the'compia:i'_ria'.nt--.to comipietegyfthe work which were left incomp«!.ete,, had submitted the bills for payment. tifi-eis_aid"vi,ivn:dv,is'puted facts, it is n0tiCed Vlnoit shown his legal perhaps it is that reason'whyth'e.,bil:l'sExs_;'l"s...5 to P.11 are totally incomplete. While prose-cutliornl 'these documents, on scrutiny, it '»i:§"'seenVthatllthe bills are just prepared by the submitted to the office of the accused wit'hVo1u"t4:bre'Ving";'e$<amined by the other two Officers namely the"'---Assistant Engineer and Junior Engineer. Both the Offi_.cers'":were required to physically inspect the work, 'prepare the measurement book and then recommend for "payment of the amount. The accused undoubtedly is a person conferred with authority to have the final say in the as 13 matter, but Assistant Engineer and Junior Engineer are those who were required to submit report to the

14. In this backdrop, we have to see the atlegations made by the complainant V' The complainant's version is tj'hatl'"s:'nce -:the_'l'-bi.lVlVs"are pending from 7 to 8 months.,_he a'pproacheyd..".the demanded for showing officiaitttfaxrour bills.VV Ofcourse, in his evid.e*:'r~ce, Pllﬂ/"._i--;l§a_f'an«na has stated that he had made certain paymleriltishtov undoubtedly as a bribe and'««T:.t:la-at :accuswéd"4.wé'S'*~»n_.QtT'satisfied and had demasadeglitAiVr€s.V3o;ooo,(\§'*-iis__which was then made as Rs.22,ooo/9.. The 't¢.ﬁp:aa"i'nt given by PW.2--Krishnegowda to the"E_o|<ayu'i<thaalso reveals these facts and hence it has toﬁbe the demand made by the accused is in respect'4of..,oldl':;'b'i'lls only. The amount demanded by him to bei"paictiwa§Rs.22,ooo/--.

15; Now we shall consider about the actual trap, is based for indicting the accused. The sequence of events that took place on that day are found in the at I4 evidence of PW.1--Rajanna and PW.2--i<rishnegowda and PW.S-- Investigating Officer.

16. PWs.1 and 2 are consistent on they travelled together and reached the"office"-:Q'f_ thvle"

accused at about 12.30 PM. Avccordicng to._'t~he'ir'via-r.si'o.rfr:, when both entered the offiz:e,'e~.._t_he accused i")va9:§'s.eaVted the Chair in his chamberianid --.._afte%.;~ ,..~3.E:'Vl:Autaition, the complainant asked The accused questioned himas to whietlfierl what he had asked. to have told whatever is to be paid to him and thenphe will This is how it is alleged that;' "conversation commenced. PW.2--Krishnegowda that when he told the accused he had bro.ught4:'t'h:e nfio"ney, the accused took a file and asked him to "'keep:th-at money into the file, which he did and then tendere'd.. the cheque for Rs.12,{300/-- which the accused "de'ci*ined to receive and asked him to bring cash. Soon "after, he sent the pre--determined message to the investigating Officer in response to which he entered the office. In support of complainant's version, PW.1~Rajanna aeiv 15 also commenced his evidence and narrated the same sequence of events, but it is material to note cross~examinat:ion PW.1-Rajanna has virtually_.i:'n.dica'ted earlier statements which were in support version PW.2-Krishnegowda. It will be worth.,ex4t'ra1ctt'in-gt'wi:aAt"=:h_e had admitted in his cross~e>ram_i.VnatiVoii "il\ihVich'readS_,,tVhus;V% " After receiving the infornjation a'r:dl_instriuctions in the Lokayuktha the office of the accused. I went to thie;o:fﬁceli' accused along with Pl/E/.42} .__I wasinat;,i;aaiv.tagac¢usea earlier to the trap._ mgenamaei tiiej;att;is'ed is in the 2nd floor of so Piti,"'at that time, accused was 'iiis"o;fﬁce.é is true to suggest that Vvfrom was sitting in the office of the accused,' 1"= nottfinxla position to see the accused. But "wiasvicapableht of seeing PW.2. It is false to " suggest used did not demand any bribe from .--P_W,2.._a'nd PW.2 himself suggest that I was not able file kept on the table of the accused and the Zdvawer in which the accused kept the tainted currency notes. It is false to suggest that myself it and PW.2 are friends in order to help him, I am if disposing falsely. It is false to suggest that when PW.2 kept the tainted currency notes into the file, at that time accused was no there on his seat. ".

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17. Thus, it is seen that PW.1 from the place where he was seated was not able to see the accused.._bu,t'Iwas able to see only PW.2-Krishnegowda. This is aliege that he had not seen whether the_~i't1ote:s'.._kept"

by the complainant at the instance,é,c3fuit.b1e.,"accu'se_d"=;oAr whether the notes were kept by the accused. In view of the clean:'a-d:rn«i,s_sion'ot_l%W.:vj:~Rajanna that he was not able Vtolfsee his earlier version that complainant V offeiretiin.njwon~ev~.,,'a'n'd_' 'accused opened the file asl<i,ti._i;J'4 to::":§<eepﬁth:e jno'tes""certainly becomes a fact His assertion to this effectiis thAeAret'orei'to>'beiesc-hewed. What transpired later is alsoﬂliofi response to signal, PW#S~ Investigating"'Qffivcer enters the room along with two w,itlness.es,_":they surround the accused and did not allow They take his hand wash which shows V-._'ne-gtative result for presence of Phenolphthalein. After that, the Investigating Officer is said to have ".gu'e'stioned the accused, who gave a statement that he " *-'itnow nothing about what has happened and he was totally confused and disturbed. The accused is said to have taken out the file from_ the drawer and gave to the Investigating ii 17 Officer who found the notes. This is a crucial aspect, which needs clarification and needs decision.

18. According to the prosecution, it has;'_"esta_~b'lis}":.e_d«_ its case from the evidence of regarding the demand made by the accused. 4teifivd'_er:.;oi' bait money by the complainant. BVuitV_accord'i'ng_A the of the accused, in his absencie, gthet "complainant had entered his chamber po;ssii;ly"l1e».had_ kept the notes in the file of whichhe had...n.o_ :i<.nowiied'g'e,"against the version of the accuS.edA::t'tiat.,h*e _noa..Vkliow'iedge, we have the versionof th:éi,coVri?ipiai'ri.a'nt wh_o"'sa:ys that it is accused who had a'ske'd.'_ hiru money. As far as PW.1~ Rajanna is. 'concerAr~._ed~,~"V his admission in the cross-- exa_n1ir}atio_n tha't"i'*--.--e«was not able to see the accused from seated accrues to the benefit of the accused. Since acgcotdiiiihg to the prosecution also there were only three g;ie.rsons, excluding the statement of PW.1--Rajanna, i.l;:isj_.the word of the complainant against the word of the accused. The second aspect is, the prosecution itself asserts that chemicai test for presence of Phenolphthaiein power in the hands of accused stood negatived. Therefore, the allegation tht the accused demanded and 3,95 18 the complainant tendered bribe money is not established in a manner known to iaw. The evidence of compi-a_i°n.ant undoubtedty is the statement of a person inte.i?es'tedyj--in:the outcome of the trap. Independentmwitnessesare"nor'mal:ly"= it brought in for the purpose of teas-su.ran'ceA-.a'nd"'f:o--rj the purpose of sanctity of th'e'i..trapV"'its'e!f. independent witness is unabi_e_l:"t-ofsupport prosecution case regarding the the fact of giving the bribe, then the wordjthe-atzcused;':i's,."a'gainst the word of the and' to rely upon such purpose of appreciating the evVide_neA:Ae"livr:V«the co.rr'e.ct--D.erspective, we have to look into the'sugrr'ou'n'dinces as well.

__19. The" ge'nes'is or the whole investigation is the aileg°edy_A~-s.:devmandﬂ'b'y'"'the accused to bribe him to PW.2~ According to PW.2--Krishnegowda, his iegitimate"vffigiiht to get the biils passed by the officer is "v..,denied_t'ili the bribe is paid. Therefore, the prosecution h.agd'"'to first establish that the complainant was entitled to receive the money covered under the bills which the accused had delayed intentionally for the purpose of 19 demanding bribe. On this issue, we see the evidence is to the contrary. There is no sufficient material to ;=ho'-wpthat the complainant had completed the work entitled for the money covered under the.*t')ills~.:'_'~ ,S'econdl.;,:;4,"'~ it is seen that the bills were not ciompliete i'n_a'll' :r'espVs§t:tsiA::6_Q as to conclude that they were 'kept penlding Atjhe.VVpVu.s?pose.V:* of extracting the bribe. that the alleged bills Exs.P.5 total-'.11«.ljgate:Vl'.no.tg*»..lthe.ggoriginals but are xerox copies of..the bilvlsdaslé complainant without it that they were If submitted, the particular; which it is submitted is not forthcomingLiritrlestigating Officer has also not produced the"fi.leVVpertaining to the bills which according to wasfgsegijzed during investigation.

20)' Learned counsel for the Lokayuktha has placed V. relianceon the following decisions;

(2007) 1 scc (Cri) 7:1 AIR 1987 sc 806

iii) 2004 scc (Cri) 981 CW 20

21. The decisions cited supra were to contend that in a prosecution for the offence under the provi..s_io4ris.V_ of Prevention of Corruption Act, the burden is to prove the legality to receiveethe arra'ount,..:'onc'eV prosecution established the demand and?aécicepta-nceg'-as.___e

22. In the case of :vs.._e_SVta'ie-C Iderala and another {(2007) 10 what was noticed by the Apex Court is th'at:.theeV'a<_:ciu'sed' 'admitted having received defence that the money__was-.fo:rc1ii;l;l:lY2upgtriinvtoj by the complainant. The that the money was in his Dossessiion by the Investigating Officer, the_;contentio'n.. was forcibly put into his pocket was In this fact situation, the Apex Court held .thCa_i;vA was discharged as the circumstances enL:me.rated under Section 20 is to raise presumption

0. nagains't" the accused were established.

23. In the case of Tarsem La! vs. State of Haryana {AIR 1987 SC 806} the Apex Court noticed that the accused had put up the plea that he had received 21 the money for the purpose of investment on NSC was an afterthought because he had not made any such statement before the Investigating Officer during trap.§'_:nor:w.'_ijie__;had cross--examined any of the witnesses during"tvhe'_itgri'al. it

24. In the case of Ai.Abdt:i'-KV3ffa:='v:'v:;.viﬁtaiteVaft» Kerala {Z004 SCC (cri) the noticed that the accused had a.dir'n_itt'ed;;havi~ng"received the money. Therefore, PW..1.--vcompla~Evnant'V'-'had'Lup the defence that the said! re4ceiv'ed"'towards payment of sales ta>_f;.E to establish that it was and the amount was receive'd"..t:owa'rds tax, the Apex Court held the accused. guilty. it In the 'i'n's'tant case, it is seen from the evidence consistentty the accused has been as_sertingT:;ti1lat he was not in the office when the compi.a__ihant and PW.1 had entered. He has consistently suggested to each witness that possibly the complainant PW.1 had kept the money in the file during his absence. As such, the evidence of Investigating Officer gtiv 23 did not clinchingly establish the guilt, acquittal was recorded.

27. In both these decisions, the demand and acceptance and toiiend s'u'p'p*o}§1;..»'oft such he aspects physical possession of mo'ney;fatthe.._reie'va'nt-tir'i=a:er becomes important. In"ti*~:.e instant'ca'se;ﬁ-reco.very,x* nodoubt is said to be from the___:cih-aim-b_er of theviaccused but it is not disputed that recovered from the person of V'accus'e'd.-or The notes are recoveretl produced by the accused -If we accept it the accused might offered by the complainant and._§Al'<ept it drawer. But there is also another the money having been kept by the co'tnp|ai'na~vnt inthe absence of the accused as propounded. The'refo.ere,'*o"n facts it is seen, the money is recovered from it the..fileV'found in the Chamber of the accused and therefore we have to see the circumstances in which the money "could have been kept in the file. The first version undoubtedly of the prosecution is that it was kept by the compfainant at the instance of the accused. Against the &' ,£1;./ 24 said version, there is also probable defence that the money could have been kept by the complainant in the absVen_ce._Vof the accused. It would suffice to say that u are possible, it is not that we are dAisbelie\.Iing4.:'lihe'*version"

of the prosecution. It may be the-,_factiahcc'u'sed':a.ske.d:"

the complainant to keep the~mo,neyVi'i1,_the file"as;spoke:n'.to by PW.2--Krishnegowda. But 'of,_2do'ubtV}certainly accrues to the benefitdof when there is another view po.ssib|e.AVthat:VVtti--e_:mo'n.ey':V'~.could have been kept by the. of the accused.

The prosecution unless it is proved by,esl_i:d.%_rice that he is guilty and the defenceliofi totally unsustainable. The gen.eraisA.propo's.ition of law that the accused is innocent till ,ApVrovedi,._g_u'ilt_.y comes into play. When two views are polssilAbVl'e:°a.n_dVAV.lti°i'e second view accrues to the benefit of the accused, Iwfind no reason as to why that liberty be denied. V. Being this view, I am satisfied, despite the evidence of l*.i5W;i--Krlshnegowda, that the accused demanded and " -"received the money, the payment being not so fully established, presence of money in the file in the chamber of the accused does not induce confidence to accept as 0""

clinching to hold that he demanded and accepted the money, completing the ingredients for the offence under the old Act. Once the charge under Section established, it follows that the consequent the offence under Section 13(1)(d): gw§}|_l not_:b'e= "= Being of this view, I am constraineda..3toA's_et' impugned judgment and recc~'r_d*--.a..cquittal of tif1'e'aj.cc.uVsed for the offence for which he was tri_ed..and_ con'v§«--cte:d.

28. For the aforesaid ::rea5»9"ﬁS'iQ.'t_he"taopeal succeeds. If the accused' cle_po1s§_ted.__.--Vajn.§r' afﬁount of fine, it is ordered The bail bonds and sureties issued if arelord'ere.d"'to4'oe cancelled. 3d/3 Iudgfg mv*

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Karnataka High Court