Karnataka High Court
Shri Abhishek S/O Rajesh Tripathi vs Cbi Acb Branch Bangalore on 14 February, 2025
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CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO. 100153 OF 2023 (C)
C/W
CRIMINAL APPEAL NO. 100156 OF 2023 (C)
IN CRIMINAL APPEAL NO. 100153 OF 2023 (C)
BETWEEN:
SHRI ABHISHEK
S/O RAJESH TRIPATHI
AGE. 38 YEARS,
OCC. INCOME TAX OFFICER (TDS),
WARD.1,
INCOME TAX OFFICE,
OPPOSITE DISTRICT HOSPITAL,
Digitally
signed by DR. AMBEDKAR ROAD, BELAGAVI.
NARAYANA
UMA R/O. NO. 4859/B.4/A,
Location: SHIVAGANGA NILAYA,
HIGH COURT
OF 6TH CROSS, 3RD MAIN,
KARNATAKA
SADASHIV NAGAR, BELAGAVI
PERMANENT ADDRESS:
NEAR Y.D. COLLEGE,
MOHALLA RAJGARH, LAKHIMPUR, KHERI, UTTAR
PRADESH - 262 701.
...APPELLANT
(BY SRI. SHANKAR HEGDE ,ADVOCATE)
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AND:
CBI ACB BRANCH BANGALORE
REPRESENTED BY SPL PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD,
HIGH COURT OF DHARWAD, DHARWAD.
...RESPONDENT
(BY SRI. NEELENDRA D GUNDE, SPL.PP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 30.03.2023 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPL. CBI
CC NO. 04/2016 CONVICTED FOR THE OFFENCES P/U/SEC.
120-B OF IPC AND SECTION 7, 12 AND 13(1) (d) R/W SEC.
13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
IN CRIMINAL APPEAL NO. 100156 OF 2023 (C)
BETWEEN:
SHRI AALOK
S/O MATA PRASAD TIWARI
AGE. 33 YEARS,
OCC. INCOME TAX OFFICER,
WARD.1, INCOME TAX OFFICE, ATHANI ROAD,
BIJAPUR.
R/O TYPE IV QUARTERS,
BEHIND INCOME TAX OFFICE, ATHANI ROAD,
BIJAPUR.
PERMANENT ADDRESS:
NEAR DRONACHARYA ACADEMY 60 FEET ROAD,
JANAKIPURAM EXTENSION, LUCKNOW,
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NO. 384E, SHASTRI NAGAR,
NEAR JAIL ROAD, RAIPURRAJ,
THANA KOTWALI DEHAT
BEHARAICH - 271 801.
UTTAR PRADESH.
...APPELLANT
(BY SRI. SHANKAR HEGDE ,ADVOCATE)
AND:
CBI ACB BRANCH BANGALORE
REPRESENTED BY SPL PUBLIC PROSECUTOR, HIGH
COURT BUILDING, DHARWAD, HIGH COURT OF
DHARWAD, DHARWAD.
...RESPONDENT
(BY SRI. NEELENDRA D GUNDE, SPL. PP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 30.03.2023 PASSED BY THE III ADDL. DISTRICT AND
SESISONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPL. CBI
CC NO. 04/2016 CONVICTED FOR THE OFFENCES P/U/SEC.
120-B OF IPC AND SECTION 7,12 AND 13(1)(d) R/W SEC.
13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND TO
ACQUIT THE APPELLANT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.11.2024 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. The appellants herein have preferred these appeals being aggrieved by the judgment of conviction and order on sentence dated 30.03.2023 in Spl.CBI C.C No.4/2016 on the file of III Additional District and Sessions Judge and Special Judge, Dharwad passed against accused Nos.1 and 2 for the offences punishable under Section 120-B of the Indian Penal Code (for short "IPC") and Sections 7, 12 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short "P.C Act"), they are taken up together for consideration.
2. The rank of the parties in the Trial Court will be considered henceforth for convenience. Brief facts of the case are as under:
3. It is the case of the prosecution that the accused Nos.1 and 2 were working as Income Tax Officers at Belagavi and Vijayapura respectively. It is further stated that the complainant had not filed Income Tax Returns for the financial year 2008 to 2015. Considering the non-filing of -5- NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 the said Income Tax Returns, the accused No.1 had issued notices to the complainant and sought for his explanation for having not filed the Income Tax Returns.
4. It is stated that pursuant to the said notices, the complainant and PW.2 had approached accused No.1 and offered their explanation for not having filed the Income Tax Returns relating to TDS. However, the said offer was not accepted and it was directed the complainant and PW.2 to submit the documents. Further, it is stated that accused No.1 stated to have demanded a sum of Rs.4,00,000/- as illegal gratification to do some official favour. The complainant disagreed to pay such a huge amount and then, it was reduced to Rs.2,50,000/- after negotiation.
5. It is further stated that the complainant being unhappy about the said development and decided to approach CBI in that regard. Accordingly, he went along with his friend and approached the CBI Office at Bengaluru and informed them regarding the demand of illegal gratification by accused No.1. As per the direction issued by the respondent - CBI, he acted accordingly. It is further -6- NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 stated that accused No.2 had informed the complainant that he would send accused No.3 to his office and directed him to pay the amount of Rs.2,50,000/- to accused No.3. Accordingly, accused No.3 stated to have approached PW.1 in his clinic and introduced himself that he was sent by accused No.2. PW.2 after having confirmed that accused No.3 was sent by him, he was handing over the amount to accused No.3, at that time, accused No.3 was apprehended by the respondent - CBI and after conducting the investigation, submitted the charge sheet.
6. In order to prove the case of the prosecution, the prosecution examined 30 witnesses as PW.1 to PW.30 and got marked 95 documents as Exs.P1 to P95 and also identified 14 material objects as M.Os.1 to 14. On the other hand, the accused got examined four witnesses as DW.1 to DW.4 and also got marked 8 documents as Exs.D1 to D8. The Trial Court after appreciating both oral and documentary evidence on record, recorded the conviction of accused Nos.1 and 2 for the offences stated supra.
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7. Heard Sri Shankar P.Hegde, learned counsel for the appellants and Sri Neelendra D Gunde, learned Special Prosecutor for respondent in both the appeals.
8. It is the submission of learned counsel for the appellants that the judgment of conviction and order on sentence passed against accused Nos.1 and 2 are perverse or erroneous. Therefore, the same is liable to be set aside.
9. It is further submitted that the prosecution has failed to prove the demand and acceptance of illegal gratification by the accused. Mere acting on the statement of the accused No.3, the respondent - CBI cannot implicate the appellants in the above said case. The Trial Court without appreciating the facts properly and rendered the conviction, which is unsustainable under the law.
10. It is further submitted that the prosecution has not established the nexus between accused Nos.1 and 2 with accused No.3. Further, the prosecution has not established that both the accused have sent accused No.3 to collect the alleged illegal gratification from PW.1. This aspect is crucial to the case of the prosecution. Not establishing the relationship of accused Nos.1 and 2 with -8- NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 accused No.3 itself is the ground to discard the fact of demanding illegal gratification. The said aspect ought to have been considered by the Trial Court while considering the evidence.
11. It is further submitted that though the complainant stated in his evidence that accused Nos.1 and 2 have made several phone calls and demanded illegal gratification from him, the primary evidence like M.O.6 has not been proved in accordance with the law. The evidence of PW.1 would indicate that the respondent - CBI has not collected the memory card in his presence and he further, deposes that whether the memory card was there or not, was not aware to him. Moreover, the hash value of the mobile phone has not been secured which is important to ascertain the authenticity of the said mobile. In spite of this lacuna, the Trial Court proceeded to render the conviction, which is erroneous and unsustainable.
12. It is further submitted that the Trial Court ought not to have considered the remaining electronic evidence and its contents. However, the Trial Court considered the said evidence and acted upon such electronic evidence, which -9- NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 is contrary to the law relating to the admissibility of electronic evidence. Even assuming that the alleged conversations had taken place between the parties, nowhere in the said conversations, the demand of illegal gratification would taken place.
13. It is further submitted that though the prosecution tried to establish that as the work of PW.1 was pending with accused No.1, as such, he demanded illegal gratification, the evidence of PWs.1, 2 and 8 clearly indicates that accused Nos.1 and 2 were not present at the spot where the alleged incident had taken place.
14. It is further submitted that to render conviction for the offence under Section 7 of the P.C Act, demand and acceptance of illegal gratification by the Public Servant must be established by the prosecution. However, the Trial Court committed a grave error in arriving at a conclusion that accused Nos.1 and 2 are held guilty of the offences stated supra in the absence of proper proof. Therefore, the conviction is rendered unjustifiable. Hence, it is liable to be set aside. Making such submissions, the learned counsel for appellants prays to allow the appeals.
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15. In support of his submissions, the learned counsel for appellants relied on the following judgments:
1. Dr. SM Mannan v/s CBI1
2. Neeraj Dutta v/s State by Govt. of NCT Delhi2
3. Neeraj Dutta v/s State (Govt. of NCT of Delhi)3
4. K Shantamma v/s State of Telangana4
5. Jagtar Singh v/s State of Punjab5
6. P. Satyanarayana Murthy v/s District Inspector of Police, State of Andhra Pradesh & another.6
7. N. Vijayakumar v/s State of Tamil Nadu7
8. V Venkata Subbarao v/s State represented by Inspector of Police, A.P8
9. Suraj Mal v/s State (Delhi Administration)9
10. Panalal Damodar Rathi v/s State of Maharashtra10
11. Meena (SMT) w/o Balwant Hemke v/s State of Maharashtra11
12. Ram Prakash Arora v/s State of Punjab12
13. Jaswant Singh v/s State of Punjab13 1 WP.NO.24119/2022 dated 22.04.2024 2 2023 SCC Online SC 280 3 (2023) 4 SCC 731 4 (2022) 2 SCC 574 5 2023 SCC Online 320 6 (2015) 10 SCC 152 7 (2021) 3 SCC 687 8 (2006) 13 SCC 305 9 (1979) 4 SCC 725 10 (1979) 4 SCC 526 11 (2005) 5 SCC 21 12 (1972) 3 SCC 652 13 (1973) 3 SCC 657
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14. State of Karnataka v/s K.T.Hanumanthaiah14
15. Sri. P Manjunath v/s The State by Karnataka and ors15
16. Khema alias Khem Chandra v/s State of Uttar Pradesh16
17. Kali Ram v/s State of Himachal Pradesh17
18. State of Kerala v/s P.Mohammed Noushad18
19. Pradeep Kumar v/s State of Chattisgarh19
20. PC Mishra v/s CBI20
21. C.M. Girish Babu v/s CBI Cochin, High Court of Kerala21
22. Khushalchand Yashwant Gaikwad v/s State of Maharashtra22
23. Sujit Biswas v/s State of Assam23
24. Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another24
25. Smt. Anita Sonkar v/s Shakuntala Misra25
26. Ramappa Amminabhavi v/s State of Karnataka26 14 LAWS (KAR) 2006 3 129 15 WP No. 10027/2022 dated 16/11/2022 16 2022 SCC Online SC 991 17 (1973) 2 SCC 808 18 (2016) 14 SCC 318 19 (2023) 5 SCC 350 20 2021 SCC Online Del 82 21 (2009) 3 SCC 779 22 2018 SCC Online Bom 1073 23 (2013) 12 SCC 406 24 (2011) 2 SCC 532 25 2014 (123) RD 855
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27. State of Karnataka v/s Bharath Chandra27
28. Punjabrao v/s State of Maharashtra28
29. M Abbas v/s State of Kerala29
30. Krishan Chander v/s State of Delhi30
31. Jai Prakash Tiwari v/s State of MP.31
32. Parminder kaur v/s State of Punjab32
33. Umesh Patil v/s State of Karnataka33
34. Arjun Panditrao Khotkar v/s Kailash Kushamrao Gorantyal34
35. Anvar PV v/s PK Basheer and others35
36. Nilesh Dinkar Paradkar v/s State of Maharashtra36
37. Ramesh Thete v/s State of Madhya Pradesh37
38. Ram Singh v/s Col Ram Singh38
39. Sanjaysinh Ramrao Chavan v/s Dattatray Gulabrao Phalke and Ors39
40. Ritesh Sinha v/s State of Uttar Pradesh and another40 26 CRL.A. No. 2612/2010 dated 20/02/2021 27 CRL.A.No.223/1999 decided on 11/12/2001 28 (2002) 10 SCC 371 29 (2001) 10 SCC 103 30 (2016) 3 SCC 108 31 2022 SCC Online SC 966 32 (2020) 8 SCC 811 33 CRL.A.No.2760/2012 dated 21.07.2022 34 (2020) 7 SCC 1 35 (2014) 10 SCC 473 36 (2011) 4 SCC 143 37 ILR (2010) M.P 1633 38 1985 SCC Supl. 41 39 (2015) 3 SCC 123
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41. Ashalatha Soni v/s Durgesh Soni41
16. Per contra, Sri.Neelendra D Gunde, learned Special Prosecutor appearing on behalf of CBI has vehemently justified the judgment of conviction rendered by the Trial Court and he further submitted that the prosecution has proved the case of demand and acceptance of illegal gratification by the accused. The evidence of PWs.1, 2 and 8 are relevant to justify the same. The Trial Court after having considered the evidence of these witnesses, arrived at a conclusion that the demand and acceptance has been proved.
17. It is further submitted that though some official witnesses attached to the Income Tax Department have turned hostile in respect of the identity of voice samples relating to the said transaction, that may not be significant as there are other forms of evidence which supports that the 40 (2019) 8 SCC 1 41 2023 SCC Online CHH 3959 42 2022 SCC Online Del 3549
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 accused Nos.1 and 2 have demanded the amount from the complainant as illegal gratification.
18. It is further submitted that the expert who is examined as PW.28 has conducted a test to determine the veracity of the voice samples relating to the conversations that had taken place between the complainant and the accused. The said PW.28 has submitted a report as per Ex.P90. As per the said report, it is proved that the accused had demanded illegal gratification from the complainant.
19. It is further submitted that the pendency of work relating to the complainant has also been established by the prosecution. The said pendency of work itself would indicate that the accused No.1 demanded illegal gratification from PW.1 to do some official favour.
20. It is further submitted that the telephonic conversations that had taken place between the parties would indicate that the accused Nos.1 and 2 jointly and severally demanded the illegal gratification from PW.1 to do some official favour.
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21. It is further submitted that the Trial Court has considered the said aspect and recorded the conviction, which is appropriate and justifiable. Therefore, interference would not be arisen. Having said thus, the learned Special Prosecutor for the respondent - CBI prays to dismiss the appeals.
22. The learned Special Prosecutor for the respondent-CBI in support of his submission, has relied on the judgment of the Hon'ble Supreme Court in the case of NEERAJ DUTTA v. STATE BY GOVERNMENT OF NCT, DELHI43.
23. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court, the points which would arise for my consideration are:
1) Whether the findings of the Trial Court in respect of the demand and acceptance of illegal gratification by the accused is justified?
2) Whether the Trial Court is justified in appreciating the electronic evidence?
3) Whether the findings of the Trial Court in recording the conviction is justified?43
(2023) 4 SCC 731
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4) Whether the appellants have made out a case to interfere with the findings of the Trial Court?
24. Before adverting to the facts of the case, it is relevant to refer the legal proposition of the law along with the provisions of the P.C Act. The charge sheet has been laid against the appellants for the offences punishable under Sections 7, 12, 13(1)(d) r/w 13(2) of P.C Act.
25. In this context, it is relevant to refer to Section 7 of the P.C Act reads as under:
"[7. Offence relating to public servant being bribed.-- Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such
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(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable, with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by
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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.] On careful reading of the above said provision, it makes it clear that the demand for illegal gratification and acceptance thereof is sine qua non to constitute an offence under Section 7 of the P.C Act.
26. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of N.VIJAYAKUMAR V. STATE OF TAMIL NADU stated supra, the Hon'ble Supreme Court held in paragraph No.27 as under:
"27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj read as under: (SCC pp. 58-59) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P- 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
27. On careful reading of the above said judgment, it makes it clear that to constitute an offence under Section 7 of
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 the P.C Act, there must be a demand for illegal gratification and the same has to be accepted by the Public Servant. Once the acceptance is proved presumption under Section 20 of the P.C Act would arise.
28. Having considered the principles laid down by the Hon'ble Supreme Court in the above judgment, now it is relevant to consider the evidence of material witnesses. In this regard, the prosecution has relied on the evidence of PWs.1, 2 and 8 who are considered as material witnesses to the incident. According to PW.1, he did not submit the Income Tax Returns for the year 2008 till 2015. He further admitted that pursuant to the notices of the Income Tax Department, he had approached accused No.1 and requested him to do the needful.
29. Further, PW.1 stated in his evidence that the accused No.1 stated to have demanded illegal gratification of Rs.4,00,000/-, however, it was reduced to Rs.2,50,000/- after negotiation to do some official favour to him. PW.1 further deposes that accused No.2 contacted him over the phone and directed him to pay the amount of Rs.2,50,000/- to the person whom he would send.
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 However, in the meantime, PW.1 had contacted the respondent - CBI and informed them about the illegal gratification which was being demanded by the accused.
30. He further deposed in his evidence that as per the direction of the respondent - CBI, he acted and accordingly, accused No.3 was arrested. The overall evidence of PW.1 would indicate that he has supported the case of the prosecution that he had received an instruction from accused No.2 that he should pay the amount of Rs.2,50,000/- to accused No.3. However, as the prosecution has failed to establish that there was a demand made by accused No.1 to do some official favour to PW.1, the evidence of PW.1 is not relevant and the Trial Court ought to have appreciated the evidence of PW.1 properly before it could have arrived at a conclusion that the accused are found guilty of the offences stated supra.
31. As regards the evidence of P.W.2 is concerned, he stated to have accompanied P.W.1 and approached the accused No.1 at Belagavi to get clarification in respect of notices issued by him. According to him, he was present when a
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 demand of illegal gratification was made by accused No.1. However, in the cross-examination, he had admitted that he was entrusted with the work of submitting the Income Tax Returns on behalf of P.W.1. As could be seen from his evidence that soon after the incident, he remained unnoticed and did not inform the said fact to the concerned authority. It is further noticed that he was not present as on the date of the alleged incident which had taken place in the clinic of P.W.1. Therefore, his evidence in respect of demand and acceptance of illegal gratification would not play any pivotal role in this case and his evidence would not inspire any confidence. Therefore, in my considered opinion, the evidence of this witness is not believable.
32. The evidence of P.W.8 who is the shadow witness to the incident would indicate that there was no demand of illegal gratification by accused No.3. However, P.W.1 was handing over the amount of Rs.2,50,000/- to accused No.3, at that time, the accused No.3 was apprehended by the respondent-CBI. On conjoint reading of the evidence of P.W.1, 2 and 8, it can be inferred that the prosecution
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 has failed to establish the demand and acceptance of illegal gratification by accused Nos. 1 and 2. The Trial Court ought to have appreciated the evidence in such a manner before arriving at a conclusion that the accused are found guilty of offence punishable under Section 7 of the P.C. Act.
33. As regards the electronic evidences are concerned, the prosecution tried to convince the Court that the conversations between P.W.1 and with other accused were recorded in M.O.6 which was produced by P.W.1 and the same was seized under the trap mahazar, which is marked as Ex.P12. Though P.W.8 supported the case of the prosecution in respect of the said mahazar, the evidence of PWs.1 and 8 would clearly indicate that both these witnesses have not seen the removal of the memory card from the said M.O.6. Further, it would indicate that they have not heard the conversations said to have been transferred to the Compact Discs (for short 'CD'). In the absence of collecting the certificate as required under Section 65-B of the Indian Evidence Act to prove the electronic evidence in respect of the memory
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 card, it is unsafe to rely on the evidence of the said electronic device. Though the prosecution has tried to impress the Court that the conversations that had taken place between the parties were transferred to CDs, which are identified as M.O.s 1, 7 and 9, as the primary evidence itself proved to be unacceptable, the remaining portions ought not to have been considered by the Trial Court. However, the Trial Court grossly committed an error in considering the said evidence. Therefore, the findings of the Trial Court in respect of the electronic evidence, in my considered view, is opposed to the settled principle of law.
34. In this regard, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of SANJAYSINH RAMRAO CHAVAN v. DATTATRAY GULABRAO PHALKE AND ORS stated supra, paragraph No.16 of the said judgment, which reads as under:
"16. It is to be noted that in the first complaint filed by the second respondent, the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against Accused 2 only.
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure B Report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. The learned counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] ."
35. On reading of the above said judgment, it makes it clear that when the conversation is not proved through independent witnesses, relying on such conversation and
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 rendering the conviction would be unjustifiable. Once it is found that there is no material to connect the accused with the crime, rendering the conviction on the basis of invalid evidence certainly would lead to anomaly. Therefore, I am of the considered opinion that the prosecution has failed to prove the case against the accused even on the electronic evidence. It is needless to say that the persons who acquainted with the voice of accused Nos.1 and 2 have been examined in this case and they have turned hostile and not supported the case of the prosecution.
36. The evidence of P.W.12 assumes greater significance as accused No.3 was working with him as an office boy. According to him, neither accused No.1 nor accused No.2 has spoken with him regarding sending of accused No.3 to P.W.1 to collect the illegal gratification. In fact, he deposes in his evidence that he had sent accused No.3 to collect the money to deposit the same into the bank to make online payment of arrears of income tax of P.W.1. Even on any stretch of the imagination, it could be inferred that the prosecution has utterly failed to
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NC: 2025:KHC-D:3075 CRL.A No. 100153 of 2023 C/W CRL.A No. 100156 of 2023 establish that the prosecution has proved the case beyond a reasonable doubt regarding the guilt of the accused in respect of the offences stated supra.
37. As regards the submission of learned Special Prosecutor appearing on behalf of respondent - CBI, he mainly relied on the judgment of the Hon'ble Supreme Court in the case of NEERAJ DUTTA stated supra, wherein the Hon'ble Supreme Court held that if the complainant turned hostile or has died or was unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The said dictum of the Hon'ble Supreme Court, in my considered view, is not applicable to the case. Therefore, the reliance placed by the learned Special Prosecutor for respondent - CBI cannot be sustained.
38. In the light of the observations made above, I proceed to answer the points which arise for my consideration as under:-
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NC: 2025:KHC-D:3075
CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
Point No.(i) .. In the 'Negative'
Point No.(ii) .. In the 'Negative'
Point No.(iii) .. In the 'Negative'
Point No.(iv) .. In the 'Affirmative'
39. Accordingly, I proceed to pass the following:-
ORDER
i) The Criminal Appeals are allowed.
ii) The judgment of conviction and order on sentence dated 30.03.2023 passed in Spl.CBI. C.C No.04/2016 by the III Additional District and Sessions Judge and Special Judge, Dharwad is set aside.
iii) The appellants / accused Nos.1 and 2 are acquitted for the offences punishable under Section 120-B of IPC and Sections 7, 12, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
iv) Bail bonds executed, if any, stand cancelled.
Sd/-
(S.RACHAIAH) JUDGE UN, List No.: 19 Sl No.: 1