Karnataka High Court
State Of Karnataka vs Smt. D. Anuradha on 16 December, 2024
-1-
NC: 2024:KHC:53380
CRL.A No. 1446 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1446 OF 2015 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY,
THE POLICE INSPECTOR,
KARNATAKA LOKAYUKTA POLICE
WING, BENGALURU CITY DIVISION,
BENGALURU - 560 001.
... APPELLANT
Digitally signed (BY SRI. VENKATESH .S. ARBATTI, ADVOCATE)
by SWAPNA V
Location: high
court of AND:
karnataka
SMT. D. ANURADHA
WIFE OF SRI HONNEGOWDA,
AGED ABOUT 56 YEARS,
FIRST DIVISION ASSISTANT,
KARNATAKA HOUSING BOARD,
RURAL DIVISION, 6TH FLOOR,
'F' BLOCK, OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER,
CAUVERY BHAVAN, K.G. ROAD,
BENGALURU, RESIDENT OF NO.33,
12TH MAIN, MAHALAKSHMIPURA
POST, BENGALURU - 560 024.
... RESPONDENT
(BY SRI. M.S. BHAGWAT, SR. ADVOCATE FOR
SRI. GIRI KUMAR S.V., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C PRAYING TO A) GRANT LEAVE TO FILE THE APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
06.08.2015 IN SPL.C.C.NO.126/2009 PASSED BY THE XXIII ADDL.
-2-
NC: 2024:KHC:53380
CRL.A No. 1446 of 2015
CITY CIVIL AND S.J. AND SPL. JUDGE, BANGALORE URBAN DIST.,
BANGALORE. B) SET ASIDE THE ORDER DATED 06.08.2015 IN
SPL.C.C.NO.126/2009 PASSED BY THE XXIII ADDL. CITY CIVIL AND
S.J. AND SPL. JUDGE, BANGALORE URBAN DIST., BANGALORE. C)
CONVICT THE RESPONDENT/ACCUSED FOR OFFENCES P/U/S 7,
13(1)(D) AND 13(2) OF THE P.C. ACT AND CONSEQUENTLY
SENTENCE THE RESPONDENT/ACCUSED FOR THE CHARGES LEVELED
AGAINST HIM;
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.11.2024 COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MRS JUSTICE M G UMA
CAV JUDGMENT
The State of Karnataka, represented by Lokayukta Police, is impugning the judgment dated 06.08.2015 passed in Spl.CC.No.126/2009 on the file of the learned XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru, acquitting the respondent-accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act').
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. -3-
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
3. Brief facts of the case are that, PW1-N.G.Anil Kumar filed first information on 14-11-2008 with Lokayukta Police, Bengaluru, against the accused stating that sister of the informant Smt.N.G.Yashodha was allotted with house No.20, EWS under application No.16163 during 1987-88 which is situated at Ijoor Layout, Ramanagara, by Karnataka Housing Board (for short KHB), Ramanagara. The KHB has called upon the allottee to pay the consideration amount. Accordingly, the entire consideration amount was paid on 03.08.2007.
4. It is contended by the complainant that on 13.11.2008 he met the accused, who was working as First Division Assistant (FDA) in KHB and enquired as to why the site was not registered in the name of the allotee, even after lapse of one year and three months. The accused demanded illegal gratification of Rs.3000/- by stating that she has to pay to the Engineer, who conducts spot inspection and other higher officers. Since the complainant was not willing to pay the illegal gratification, he filed the first information requesting the Lokayukta police to register the case and to initiate legal action. Accordingly, the FIR came to be registered in Cr.No.82/2008 -4- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act.
5. Entrustment Panchanama was drawn on the same day in the presence of two independent witnesses, who are also public servants and cash of Rs.3000/-i.e., 6 currency notes of Rs.500/- each, smeared with phenolphthalein powder were entrusted to PW1 with an instruction to go and meet the accused and if she demands the illegal gratification, to pay the same. PW3 acted as shadow witness and he was directed to accompany the complainant to observe the conduct of the accused. It is the contention of the prosecution that, PWs.1 and 3 went and met the accused in her office. PW1 enquired her about execution of sale deed in favor of his sister in respect of the site that was allotted in her favor and the accused had demanded illegal gratification of Rs.3000/- as demanded on the previous date. It is the further contention of the prosecution that PW1 tendered the tainted amount smeared with phenolphthalein powder and the accused accepted and kept it in her table drawer. Immediately, he came out and gave signal to the Lokayukta police, who were waiting outside. The Lokayukta officials along with the pancha witness-PW4 rushed -5- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 to the spot, introduced themselves to the accused, washed her right and left hands separately in sodium carbonate solution and collected the samples. It is stated that the accused had produced the tainted amount from her table drawer, which was seized under the trap panchanama. The accused has given her explanation for being in possession of the tainted amount as per Ex.P10. Therefore, it is the contention of the prosecution that the accused being the public servant, demanded the illegal gratification of Rs.3,000/- from the complainant to do the official favour, i.e., for registration of the sale deed in favour of the sister of the complainant and accepted the same. Accordingly the final report came to be filed and criminal case was registered against the accused.
6. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. Prosecution examined PWs.1 to 5, got marked Exs.P1 to 23 and identified MOs 1 to 8 in support of its contention. The accused has denied all the incriminating materials available on record in her statement under Section 313 of Cr.P.C and got examined DW1- the Assistant Executive Engineer working in KHB, Bengaluru in support of her defence. The Trial Court after taking into -6- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 consideration all these materials on record, came to the conclusion that the evidence of PWs.1 and 3 suffers from inherent infirmity, demand and acceptance of illegal gratification by the accused is not proved by the prosecution and therefore the accused is entitled for acquittal. Accordingly, the impugned judgment of acquittal came to be passed. Being aggrieved by the same, the State represented by Lokayuktha police has preferred this appeal.
7. Heard Sri.Venkatesh.S.Arbatti, learned counsel for the appellant-State. Sri. M.S.Bhagwat, learned Senior Advocate for Sri. Giri Kumar.S.V., learned counsel for the respondent. Perused the materials including the Trial Court records.
8. Learned counsel for the appellant submitted that the prosecution has specifically contended that the accused was working as FDA in KHB and she was handling the file pertaining to the sister of the complainant, who belongs to economically weaker section of the society. It is admitted that the accused was working as FDA in KHB. It is also admitted that the site in question was allotted in favour of the sister of the complainant. It is not in dispute that the entire consideration amount for the -7- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 site is already paid long back, but in spite of that, the registered sale deed was not executed by KHB. The prosecution specifically contended that the accused who was handling the file in question was met by the complainant on behalf of his sister and enquired as to why the sale deed is not being executed. At that time, the accused in order to show the official favour of preparing the draft sale deed and put up for registration of the sale deed, demanded illegal gratification of Rs.3,000/-. It is therefore, the complainant filed the complaint as per Ex.P1. The facts regarding allotment of site, the accused working as public servant dealing with the file pertaining to the accused were never disputed.
9. Learned counsel submitted that PW1 being the informant, PW3-shadow witness, PW4-pancha witness and PW5-the Investigating Officer have consistently deposed before the Trial Court regarding the pre-trap procedures and drawing up of pre-trap panchanama. They also spoke about entrustment of Rs.3,000/- to PW1 and giving instructions to him as well as to PW3-the shadow witness, to meet the accused and to tender the tainted amount. Learned counsel submitted that it is specifically deposed by PWs.1 and 3 that -8- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 they have met the accused in her chamber and enquired about registration of the sale deed and the accused enquired as to whether PW1 has brought the amount as demanded by her on the previous day. It is thereafter PW1 tendered the tainted money smeared with phenolphthalein powder. The accused accepted the same and kept it in her table drawer. On receiving the signal from PW1, Lokayukta police along with PW4 came to the spot. It is stated that the hand wash of the accused in sodium carbonate solution turned into pink color and the samples were collected by the Investigating Officer.
10. Learned counsel further submits that admittedly, the tainted amount of Rs.3,000/- entrusted to the complainant was found in the table drawer of the accused. She herself produced the currency notes marked as MO6 before the Investigating Officer. When she was asked to explain under what circumstances she came in possession of the tainted amount, the accused has given her explanation in her own handwriting as per Ex.P10.
11. Learned counsel submitted that even as per Ex.P10, PW1 had enquired with the accused regarding execution of the -9- NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 sale deed in favor of his sister on 11.11.2008 and she had sought for two days time for registration of the sale deed. She further states that on 14-11-2008, PW1 had came and given her Rs.3,000/-, which was later seized by Lokayukta police. The explanation given by the accused as per Ex.P10 is the clear admission on the part of the accused regarding pendency of the work, demand and acceptance of illegal gratification and the trap of the accused by the Lokayukta police, recovery of the tainted amount from her table drawer. Under such circumstances, the Trial Court should have convicted the accused for the above said offences.
12. Learned counsel submitted that PWs.1 and 3 have consistently deposed regarding demand and acceptance of illegal gratification. PW1 stated that the file in question was pending with the accused. Nothing has been elicited during cross-examination to disbelieve their version. Minor inconsistencies in the evidence of these witnesses is required to be ignored as the same do not go to the root of the matter.
13. Learned counsel further submitted that PW4-the pancha witness and PW5-the Investigating Officer have also
- 10 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 supported the version of PWs.1 and 3 and even during their cross-examination, nothing has been elicited by the learned counsel for the accused but the defence taken in Ex.P10 by the accused was given a go-by. The pendency of the work was never seriously disputed. Similarly, recovery of the tainted amount was also not disputed. In spite of that, the Trial Court proceeded to acquit the accused by observing that there are inherent infirmities in the evidence of PWs.1 and 3 regarding demand and acceptance. The Trial Court proceeded to form an opinion that the accused keeping the tainted amount in her table drawer is not proved. On the other hand, the Trial Court proceeded to make out a new ground for the accused that the complainant himself must have kept the amount in the table drawer without the knowledge of the accused. The Court has also held that since the accused has produced the tainted amount before the Investigating Officer and thereafter her hands were washed in sodium carbonate solution, her hand wash must have changed colour. Such defence was never taken by the accused at any point of time. The Court has also committed an error in forming the opinion that the original file - Ex.P18 was not under the control of the accused as on the date
- 11 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 of trap. It has also held that no work was pending with the accused for her to demand illegal gratification. It also found fault with the prosecution for not examining the sister of the complainant and formed an erroneous opinion that the prosecution is not successful in proving the guilt of the accused. The finding recorded by the Trial Court is contrary to the materials that are placed before the Court and therefore, the impugned judgment of acquittal passed by the Trial Court is liable to be set aside.
14. Learned counsel placed reliance on the decision of Hon'ble Apex Court in Sita Soren V. Union of India1 in support of his contention that the Hon'ble Apex Court even though considering the order of the High Court declined to quash the criminal proceeding initiated against the accused, considered the scope and ambit of Section 7 of the PC Act prior and after amendment in the year 2017. The Hon'ble Apex Court categorically held that Section 7 even prior to the amendment of PC Act also indicates that the acts of accepting, obtaining, agreeing to accept or agreeing to obtain illegal gratification is 1 (2024) 5 SCC 629
- 12 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 sufficient to constitute the offence. Therefore, accepting or obtaining of the bribe need not be actually performed.
15. Learned counsel for the appellant also placed reliance on the decision of Chandrappa and others V.State of Karnataka2 in support of his contention that the Hon'ble Apex Court has laid down the general principles regarding the powers of Appellate Court while dealing with the appeal against the order of acquittal. He highlighted the said principles found in paragraph 42 to contend that this Court being the Appellate Court has authority to review, re-appreciate and reconsider the evidence, upon which, if the order of acquittal is not well founded, there is no restriction on exercise of such power to reach its own conclusion. When the finding recorded by the Trial Court is found to be perverse and illegal, this Court is required to interfere with the impugned judgment acquitting the accused which is found to be an unjust acquittal. Accordingly, he prays for allowing the appeal and to convict the accused for the said offences.
2 (2007) 4 SCC 415
- 13 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
16. Per contra, learned Senior Advocate for the respondent opposing the appeal submitted that the accused was working as FDA in KHB. But she denied that she was handling the file pertaining to the sister of the complainant. The pendency of work with the accused was never proved by the prosecution. The original file Ex.P-18 or Ex.D3 was recovered from the Assistant Executive Engineer by the Investigating Officer during trap panchanama. Under such circumstances, the contention of the prosecution that the file was with the accused cannot be accepted. Learned counsel submitted that even as per the prosecution, the Dy.SP by name Radhamani was present throughout the trap procedure, but strangely, she was not examined by the prosecution. Non-examination of Radhamani is fatal to the case of the prosecution. Learned counsel submitted that PW2 - the sanctioning authority, categorically stated that the file concerning the sister of the complainant was not with the accused as on the date of incident. He also stated that no work was pending with the accused as on that date. Under such circumstances, the Trial Court was right in acquitting the accused.
- 14 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
17. Learned Senior Advocate submitted that PWs.1 and 3 have stated that the complainant has stated that the tainted amount is in the table drawer of the accused and the Investigating Officer directed her to produce the same. Accordingly, she kept it on the table and thereafter her hand wash in sodium carbonate solution was taken. That is the reason why the hand wash tested positive for the presence of phenolphthalein powder and such explanation is very reasonable. There is no specific evidence by PWs.1 and 3 regarding demand and acceptance of illegal gratification. The accused has examined the Assistant Executive Engineer who spoke about the work that was pending with him and the file was handled by him. He has also spoken about the procedure that was to be followed for registration of the sale deed. All these facts and circumstances disclose that no work was pending with the accused as on the date of occurrence and there was no occasion for her to demand illegal gratification.
18. Learned counsel submitted that the original allottee who should have demanded for execution of the sale deed, i.e., the sister of the complainant, was never examined by the prosecution. The complainant had no authority to insist for
- 15 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 execution of the sale deed in the absence of his sister. Ex.P18 discloses that the file never came to the table of the accused, but it was with the Assistant Executive Engineer and under such circumstances, the contention taken by the prosecution that the work was pending with the accused and that she demanded illegal gratification, cannot be accepted.
19. Learned Senior Advocate submitted that no reliance could be placed on Ex.P10-the written explanation given by the accused, as she was forced to give such explanation by the Investigating Officer and therefore, the Trial Court was right in acquitting the accused by assigning valid reasons. There are absolutely no reasons to interfere with the impugned judgment of acquittal.
20. Learned Senior Advocate has placed reliance on the decisions in Mukthiar Singh V. The State of Punjab3, S.Arundath V. Karnataka Lokayuktha Police4, 3. K. Shanthamma V. The State of Telangana5, Mir Mustafa Ali Hasmi V. The State of A.P.6, Sri. V.Raghavendra Vs. The 3 (2017) 8 SCC 136 (para 12, 13, 14 and 26) 4 (2020) SCC OnLine Kar 3213 (para 9, 26 and 27) 5 (2022) 4 SCC 574 (para 10 and 11) 6 Decided on 10.07.2024 in Slp (Crl) Nos. 9091/2022 (para 25, 26, 27, 28, 53 and 55)
- 16 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 State By Lokayuktha Police7 and P.Narasimha Murthy V. The State by Lokayuktha Police8, in support of his contention that the proof of demand of bribe and its acceptance is sine qua non for constituting offence under Section 7 of the Prevention of Corruption Act, 1988.
21. He also placed reliance on the decisions in Chandrappa (supra), State of Karnataka by Lokayuktha Police V. Sri Krishnamurthy9 and State of Karnataka by Lokayuktha Police V. N Srinivasa10, to highlight the preposition of law that, if two reasonable views are possible on the basis of evidence that are placed on record, the view that is favourable to the accused will have to be taken for consideration. But casually, the finding recorded by the Trial Court is not to be disturbed by the Appellate Court.
22. He also placed reliance on the decisions in Neeraj Dutta V. State (Govt. of N.C.T of Delhi)11, B.Jayaraj V. State of Andhra Pradesh12, Ms.K.T.Shreeshylaja V. The 7 Decided on 30.09.2024 in Criminal Appeal No.326/2012 (para 38 to 42) 8 Decided on 30.09.2024 in Criminal Appeal No.1023/2012 (para 26 to 29) 9 Decided on 28.11.2023 in Criminal No.199/2014 (para 14 onwards) 10 Decided on 23.08.2023 in Criminal Appeal No.53/2014 (para 16 and 17) 11 2023 SCC online SC 280 (para 14, 15, 16) 12 (2014) 13 SCC 55 (paras 7 to 10)
- 17 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 State of Karnataka13 and B.V.Ramesh V. The State of Karnataka14, in support of his contention that demand of illegal gratification is sine qua non for convicting the accused under Section 7 of Prevention of Corruption Act, 1988.
23. He placed reliance on the decisions in P.Satyanarayana Murthy V.District Inspector of Police, State of Andhra Pradesh and another15, N. Vijaykumar V. the State of Tamil Nadu16 in support of his contention that mere recovery of money is not sufficient to prove the charge against the accused for the offence under Sections 7, 13 1(d) of PC Act.
24. He also placed reliance of the decision in Digamber Vaishnav and another V. State of Chattisgarh17, in support of his contention that conviction cannot be based only on surmises and conjectures. Such conviction cannot be given only on suspicion, however grave it may be. Hence, he prays for dismissal of the appeal, in the interest of justice. 13 Decided on 24.03.2023 in Criminal Appeal No.20/2017 ( para 25) 14 Decided on 28.07.2023 in Criminal Appeal No.779/2011 15 (2015) 10 SCC 152 (paras 19 to 23, 25 to 27) 16 (2021)3 SCC 687 (paras 26 and 27) 17 (2019) 4 SCC 522 (para 14)
- 18 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
25. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"
My answer to the above point is in the 'Affirmative' for the following:
REASONS
26. It is the specific contention of the prosecution that the accused was working as FDA in KHB, which is an admitted fact. It is the further contention of the prosecution that a site was allotted in favour of the sister of the complainant and the entire consideration amount was already paid by her. But in spite of that, the sale deed was not executed. This fact is also admitted. There is no dispute with regard to these contentions taken by the prosecution.
27. It is the contention of the prosecution that on 13.11.2008, the informant - PW1 met the accused and enquired regarding registration of the site in the name of his sister, as it is pending since more than one year and three
- 19 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 months. At that time, the accused demanded illegal gratification of Rs.3,000/-. Since the complainant was not willing to pay the illegal gratification, he filed the complaint as per Ex.P1. PW1 and the Investigating Officer examined as PW5 have spoken to about these facts and registration of FIR by Lokayukta Police in Cr.No.82/2008 for the above said offenses.
28. It is the contention of the prosecution that a pre- trap panchanama as per Ex.P3 was drawn in the presence of PWs.3 and 4. 6 currency notes of Rs.500/- each were entrusted to PW1 by smearing the same with phenolphthalein powder. The samples of the hand wash were collected. PWs.1 and 3, the complainant and the shadow witness, were directed to approach the accused and to enquire about the execution of sale deed. PW1-the complainant, PW3-the shadow witness, PW4-the pancha witness and PW5-the Investigating Officer spoke about these facts in their evidence. All these facts and the procedures were not seriously disputed by the accused.
29. It is the contention of the prosecution that the complainant-PW1 met the accused in her office along with PW3 the shadow witness and enquired her about execution of the
- 20 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 sale deed. It is stated that the accused enquired as to whether he has brought the amount which she had demanded on the previous day. Complainant produced the phenolphthalein smeared currency notes marked as MO6 and the accused accepted the same and kept it in her table drawer. Immediately thereafter, he gave signal to the Investigating Officer, who came to the spot alongwith pahcha-PW4 and the trap panchanama was drawn. It is stated that the hand wash of accused was taken in the sodium carbonate solution and the samples were seized. Ex.P22 is the report of the chemical examiner, according to which, the right and left hand wash of the accused tested positive for the presence of both phenolphthalein and sodium carbonate.
30. PW1 has specifically deposed before the Trial Court about the pendency of work with the accused. Demand for Rs.3,000/- was made by her both on 13.11.2008 and also on 14.11.2008, when he met the accused along with the shadow witness. He categorically stated that the accused has demanded and accepted the illegal gratification, when he met her along with the shadow witness and kept it in her table
- 21 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 drawer. Thereafter, he gave signal to the Investigating Officer, who came to the spot along with the pancha witness.
31. It is pertinent to note that PW1 during his examination-in-chief stated that the Police Inspector after coming inside the chamber asked the accused to take the money from the table drawer and accordingly, the accused took it out and gave it to the Investigating Officer. Thereafter, a specific question was asked by the learned Prosecutor to PW1 as to what had happened before the accused producing the amount. PW1 categorically stated that immediately after the Police Inspector came inside, he introduced himself to the accused that they are from Lokayukta Office. Then the sodium carbonate solution was prepared, sample was preserved in the bottle, right and left hands of the accused were dipped in two separate bowls of sodium carbonate, which turned into pink colour and samples of the same were also seized. He identified all those samples. Therefore, the evidence of PW1 makes it clear that immediately when PW5 came to the spot, he introduced himself to the accused, prepared the sodium carbonate solution, took the hand wash of the accused and collected the sample. It is only thereafter, the accused was
- 22 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 asked about the tainted amount which she had produced from the table drawer and kept it on the table. During cross- examination, nothing has been elicited to contradict the version of PW1 given in the chief examination regarding the sequence of events or to disbelieve his version regarding demand, acceptance and the trap of the accused.
32. PW3 is the shadow witness, who was also a Government servant working in Education Department. She spoke about the pre-trap panchanama, going along with PW1 to the office of the accused, PW1 enquiring the accused regarding the work and the accused asking him as to whether he has brought what was told to the complainant on the previous day. It is thereafter, the complainant tendered the tainted amount of Rs.3000/-, which the accused received and kept in her table drawer. The witness also states that after receiving the tainted amount and keeping it in the table drawer, the accused asked the complainant to come after two days and in the meantime, the complainant gave signal to the Investigating Officer, who came to the spot with the pancha witness. The witness categorically stated that immediately after the Investigating Officer coming to the office of the accused, her hands were
- 23 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 dipped in the solution and the samples were collected. Witness also states that the accused had produced the tainted amount and kept it on the table which was later seized by the police. The witness was cross-examined at length. But nothing has been elicited to disbelieve her version.
33. It is pertinent to note that, learned counsel cross- examining PW3 asked about the accused producing the tainted amount from the table drawer and keeping it on the table and thereafter questioned regarding the hand wash of the accused. Based on such evidence, learned counsel for the respondent- accused contended as per PW3, initially, the accused was asked to produce the tainted amount from the table drawer and thereafter, her hand wash was held. On going through the cross-examination of PW3, no such impression could be gathered and it was never suggested either to PW1 or to PW3 that only after the accused was asked to produce the tainted amount from the table drawer, her hands were dipped in the sodium carbonate solution and that is why the solution tested positive for the presence of phenolphthalein and sodium carbonate.
- 24 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
34. It is pertinent to note that PW4 is the pancha witness, who specifically stated that initially, the fingers of both the hands of the accused were dipped in solution, which turned into pink colour and it is thereafter, the accused produced the tainted notes from her table drawer, which later seized by Lokayukta police. There is absolutely no cross-examination about these sequence of events spoken to by the witness. It was never suggested to the witness that initially the accused was asked to produce the tainted amount from the table drawer and thereafter, her hand wash was taken.
35. Similarly, PW5- the Investigating Officer has spoken to about the procedure followed by him, i.e, taking the hand wash of the accused in two different bowls and collecting the sample and thereafter, on questioning the accused about the tainted amount, she producing it from the table drawer which was also seized and produced before the Court as per MO6. Interestingly, it is specifically suggested to this witness that after production of currency notes - MO6 by the accused, her fingers were dipped in the solution. But the witnesses has categorically denied the said suggestion.
- 25 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
36. From the evidence of PWs1, 3 to 5, it is clear that there was a demand by the accused, acceptance of illegal gratification and as per the chemical examiners report, both hand wash of the accused i.e., right and left hand tested positive for the presence of phenolphthalein and sodium carbonate. In view of the evidence of PW-1, 3 to 5 the contention of the accused that the hand wash of the accused was taken only after asking the accused to produce the tainted money from the table drawer can not be accepted.
37. It is the contention of the accused that no work was pending with her and she was not the person who is required to execute the sale deed in favour of the sister of the complainant. PW1 was cross-examined at length in this regard, but nothing has been elicited from him to disbelieve his version that the file was with the accused and she demanded illegal gratification of Rs.3,000/- on 13-11-2008 and again on 14-11-2008. It is pertinent to note that Ex.P18 is the copy of the file pertaining to the sister of the complainant.
38. The accused examined DW1 to speak about the procedure that was adopted for executing the sale deed and
- 26 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 also to deny about the pendency of the work with the accused. According to DW1, he was working as Assistant Executive Engineer in KHB in the year 2008. The draft sale deed will be prepared by the Assistant Revenue Officer and his staff will be deputed to accompany the allottee to the Sub Registrar office. He identified Ex.P18 as the copy of file pertaining to the allottee i.e., the sister of the complainant. According to him, the office note in Ex.P18 discloses that the file was placed before the Assistant Engineer for CR report on 11-06-2008 and he signed it on 12-11-2008 i.e., just a day before registration of FIR. Therefore, it is stated by the witness that he had not marked the original of Ex.P18 to anybody. But it is pertinent to note in paragraph 3 of the chief examination, DW1 categorically states that some caseworker must have taken the original of Ex.P18 from his table. That means to say, even though according to DW1 he is the custodian of the original file pertaining to the sister of the complainant, the same was not in his possession and he was not sure who else had taken the file and for what purpose. It is also pertinent to note that during cross- examination, the witness has given categorical admission stating that the accused was handling the original of Ex.P18
- 27 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 and she was supposed to put up the note to place the file before the Office Superintendent and thereafter to the Revenue Officer. This categorical admission during cross-examination of DW1 goes a long way in demolishing the defence taken by the accused that she was not in custody of the file pertaining to the allottee and no work was pending with her as on the date of incident. The witness examined by the accused himself categorically stated that it was the accused who was handling the file and it was she who supposed to put up the note to place the file before the Office Superintendent. Under such circumstances, the contention of the prosecution that the accused was the Government Servant and the official work was pending with her is proved.
39. The materials on record disclose that the prosecution is successful in proving its contention that PW1 had met the accused on 13.11.2008 and the accused had demanded illegal gratification of Rs.3,000/-. On the very next day, i.e., on 14.11.2008, PW1 had lodged the complaint as per Ex.P1 and on the same day, pre-trap panchanama was held and thereafter, the complainant accompanied with the shadow witness - PW.3, met the accused and both the witnesses have
- 28 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 categorically stated that the accused had asked as to whether PW.1 had brought what she demanded on the previous date. It amounts to demand on part of the accused. PWs.1 and 3 have also stated that the accused has received the tainted amount which was tendered by the complainant and kept in her table drawer, which amounts to acceptance of the illegal gratification. Mo6-the tainted money was recovered by the Investigation Officer under the trap mahazar from the table drawer of the accused. This fact is not disputed by the accused.
40. Admittedly, the Investigating Officer has asked the accused to give her explanation regarding the tainted amount which was in her table drawer. Ex.P10 is the explanation given by the accused in her own handwriting at the earliest point of time. The explanation given by the accused supports the contention taken by the prosecution regarding allotment of site in favor of the sister of the complainant, payment of entire consideration amount, non-execution of the sale deed even after payment of the consideration amount. The accused has stated in her explanation that the complainant being the brother of allottee, came and requested for execution of the sale deed. She further states that she undertook to keep the
- 29 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 sale deed ready on 11-11-2008, and asked PW1 to come two days thereafter for registration of the sale deed. She further states that on 14-11-2008, the complainant had came to her office, gave her Rs.3,000/- and immediately Lokayukta police came. Ofcourse she stated that she has not committed any offences.
41. It is pertinent to note that as per the explanation offered by the accused, who is the Government Servant working as FDA in KHB, the site was allotted in favor of the sister of the complainant. After issuance of notice, the entire consideration amount was paid by the allottee. The sale deed was not executed in her favor. The complainant had met her requesting for the sale deed and she informed him that she will keep ready the sale deed on 11-11-2008 and asked him to come after two days. She also confirms that the complainant had came and met her on 14-11-2018 and had paid Rs.3,000/- which was found inside her table drawer. There is absolutely no defence taken by the accused while giving the explanation - Ex.P10.
- 30 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015
42. Learned counsel for the respondent tried to make out a ground stating that Ex.P.10 must have been written by the accused due to the pressure by the Investigating Officer. But strangely, no such defence was taken by the accused before the Trial Court. There is no suggestion either to PW1, PW3 or PW4 or atleast to PW5 who is the Investigating Officer. It is not the defence taken by the accused while recording her statement under Section 313 of Cr.PC. There is also no explanation as to why the defence that was taken before the Trial Court that the accused was not authorized to prepare the sale deed, no work was pending with her and she was not in possession of the file pertaining to the allottee were not taken by the accused at the initial stage while giving her explanation in her own handwriting as per Ex.P10. Therefore, it is clear that the accused has taken inconsistent defence before the Trial Court after categorically admitting the pendency of work and PW1 meeting her on the date of occurrence and paying Rs.3,000/- as stated in Ex.P10.
43. It is settled position of law that once the accused accepts the demand and acceptance and also pendency of the work with her, the presumption under Section 20 of the PC Act
- 31 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 would arise and the burden shifts on the accused to rebut the presumption. Strangely, the accused has never stepped into the witness box to depose about her defence or to deny the contention taken by the prosecution. There is absolutely no reason for the accused for not stepping into the witness box to depose about her defence. The witness examined on behalf of the accused as DW1 gives the fatal admission in favor of the prosecution that it was the accused who was handling the file pertaining to the allottee, who is none other than the sister of the complainant and it was she who was required to prepare the sale deed. Therefore, I am of the opinion that the accused has failed to rebut the legal presumption under Section 20 of the PC Act and hence, she is liable for conviction.
44. I have gone through the impugned judgment of acquittal passed by the Trial Court. The Trial Court observed that the evidence of PWs.1 and 3 have got inherent infirmities regarding demand and acceptance. It also observed that the accused keeping the money in the drawer is not proved. It goes to the extent of observing that the complainant himself must have kept the amount in the table drawer without the knowledge of the accused. Basically, no such defence was
- 32 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 taken by the accused at any point of time. The Trial Court has also held that initially the accused was asked to produce the tainted amount and thereafter, her hand wash was obtained, ignoring the evidence of PWs.1, 3, 4 and 5 in that regard. Particularly PW1 made it very clear when a specific question is posed to him that initially the hand wash of the accused was done and thereafter, the accused was asked to produce the tainted amount and the accused produced the tainted currency notes from the table drawer.
45. The Trial Court has also formed an opinion that the original file was not under the control of the accused on the date of trap, which is contrary to the admission given by DW1. The finding recorded by the Trial Court that no work was pending with the accused and therefore, the presumption under Section 20 of PC Act do not arise is also contrary to the evidence of DW1, examined by the accused herself.
46. The contention of the learned counsel for the accused that the sister of the complainant was not examined by the prosecution will not serve any purpose as there is absolutely no cross-examination to PW1 or to the Investigating
- 33 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 Officer disputing the contention taken by PW1 regarding allotment of site in favor of his sister and he approaching the accused, enquiring about registration of the sale deed. Under these circumstances, the Trial Court has committed an illegality in recording the finding that the presumption under Section 20 of PC Act do not arise in favour of the prosecution. The finding recorded by the Trial Court is contrary to the materials, both oral and documentary. Therefore, the impugned judgment of acquittal passed by it suffers from illegality and perversity. The various citations relied on by both the parties highlight the position of law which is well settled. On application of such principles of law, I am of the opinion, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The impugned judgment suffers from illegality and perversity. Hence, it calls for interference by this Court. Accordingly, I answer the above point in the affirmative.
HEARD REGARDING SENTENCE ON 17.12.2024:
Heard learned counsel for the appellant and learned counsel for the respondent - accused regarding sentence.
- 34 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 Learned counsel for the respondent - accused submitted that the respondent is now aged 59 years, and due for retirement within five months. She is suffering from various ailments and she is a widow taking care of her family members. Hence, maximum leniency may be shown while sentencing.
Per contra, learned counsel for the appellant submitted that the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') is proved by the prosecution. The Hon'ble Apex Court has time and again cautioned the Courts to impose stringent sentence to send a strong message to the Society as it is stated that Corruption is a cancer, deep-rooted in the Society. Hence, prays for imposing the maximum sentence.
On perusal of the materials on record, it is found that the petitioner has demanded illegal gratification of Rs.3,000/-. However, she was acquitted by the Trial Court. Now, the respondent is said to be aged 59 years and she is a lady. Taking into consideration all these facts and circumstances, I am of the opinion that the respondent is not liable for maximum sentence. However, proportionate sentence is to be
- 35 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 imposed to meet the ends of justice. Hence, I proceed to pass the following;
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment dated
06.08.2015 passed in Spl.C.C.No.126/2009 by the learned XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru City, acquitting the accused, is set-
aside.
(iii) Consequently, the respondent - accused is convicted and sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act. In default, she shall undergo imprisonment for a period of two months.
(iv) The accused is convicted and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,000/- for the offence punishable under Sections 13(1)(d) read with Section 13(2) of the PC Act. In default, the respondent - accused shall undergo imprisonment for a period of four months.
- 36 -
NC: 2024:KHC:53380 CRL.A No. 1446 of 2015 Send back the Trial Court Records along with copy of this judgment to the Trial Court for information and for needful action, that is for securing the presence of the accused and for issuance of conviction warrant.
At this stage, learned counsel for the respondent - accused has filed an application - I.A.No.2/2024 seeking to suspend the sentence.
For the reasons stated in the memorandum of facts accompanying the application, I.A.No.2/2024 is allowed and the sentence imposed on the respondent - accused is suspended for a period of 60 days subject to condition that the respondent
- accused shall deposit fine amount before the Trial Court and furnish a personal bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the Trial Court.
Furnish free copy of this judgment to the respondent - accused.
Sd/-
(M G UMA) JUDGE BH List No.: 2 Sl No.: 38