Karnataka High Court
The State Of Karnataka vs Yallappa on 15 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A.No. 100161 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 100161 OF 2016
BETWEEN
THE STATE OF KARNATAKA,
LOKAYUKTHA POLICE,
POLICE INSPECTOR,
KARNTAKA LOKAYUKTA,
POLICE WING, BELAGAVI.
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
KARNATAKA LOKAYUKTA.
.....APPELLANT.
(BY SRI SANGOSH B. MALAGOUDAR, SPECIAL PUBLIC
PROSECUTOR.)
AND
SUJATA
SUBHASH
PAMMAR YALLAPPA
S/O BASALINGAPPA TOTAGI,
Digitally signed by
SUJATA SUBHASH AGE: 42 YEARS,
PAMMAR
Location: HIGH
COURT OF
KARNATAKA,
OCC: ASSISTANT REGISTRAR OF
DHARWAD BENCH,
DHARWAD.
Date: 2023.02.23
12:17:21 +0530
CO-OP SOCIETIES, BAILHONGAL,
NOW WORKING IN THE
OFFICE OF ASSISTANT REGISTRAR
OF CO-OP SOCIETIES, JAMKHANDI.
.....RESPONDENT
(BY SRI M.J.PEERJADE, FOR SHRI VIJAY K. NAIK, ADVOCATE.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
22/08/2015, PASSED BY THE IV ADDL. DISTRICT AND SESSIONS &
SPECIAL JUDGE, BELGAVI, IN SPECIAL CASE NO.62/2012 AND
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CRL.A.No. 100161 of 2016
CONVICT AND SENTENCE THE RESPONDENT/ACCUSED PERSON FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ
WITH SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988,
ETC.,.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.01.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State through Lokayukta Police challenging the judgment of acquittal dated 22.08.2015, passed by IV Addl. District and Sessions Judge and Special Judge (PCA), Belagavi, in Special Case No.62/2012, whereby the learned Special Judge has acquitted the accused for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (P.C.Act, for short).
2. For the sake of convenience the parties herein are referred with the original rankings occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
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a) The complainant in order to have a money lending licence, moved an application along with licence fee and other relevant documents with security deposit before Assistant Registrar of Co-operative Societies, Bailhongal. When he approached the accused in his regard, it is alleged that accused has demanded Rs.3,000/- as bribe for getting sanction of licence from the office of Deputy Registrar of Co-operative Societies. It is further alleged that on 31.01.2011, when the complainant contacted accused through mobile phone, there was again demand of Rs.3,000/- and hence it is alleged that the complainant went to Lokayukta Police Station on 11.02.2011 and lodged a complaint.
b) On the basis of the complaint, the Lokayukta Inspector secured two Government officials as panchas and then pre-trap proceedings were held in the office after production of amount by the complainant and then trap was arranged. It is further the case of the prosecution that then the complainant along with shadow witness approached the accused and it is alleged that accused has -4- CRL.A.No. 100161 of 2016 demanded and accepted the bribe amount of Rs.3,000/- near a tea stall and there a trap mahazar was also drawn. Then the accused was arrested and remanded to judicial custody and subsequently he was enlarged on bail.
c) On the basis of these proceedings, the Investigating Officer investigated the crime, recorded the statements of material witnesses and has also obtained sanction and then he submitted the charge sheet against the accused for the offence punishable under sections 7 and 13(1)(d) read with section 13(2) of P.C.Act.
d) After submission of the charge sheet, as there were sufficient grounds to proceed, the special Judge has taken cognizance and summons were issued to the accused. He has appeared and he was furnished the prosecution papers. Then, after hearing, charge under sections 7 and 13(1)(d) read with section 13(2) of P.C.Act was framed against the accused and he pleaded not guilty and claimed to be tried.
e) The prosecution has got examined nine witnesses as PW.1 to PW.9 and also placed reliance on 39 -5- CRL.A.No. 100161 of 2016 documents as well as 11 material objects. After conclusion of the evidence of prosecution, the statement of accused under section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial. He has also submitted his written say asserting that there was no work pending with him and on 29.01.2011 itself he recommended for issuance of licence and on 11.02.2011 the complainant has forcibly thrusted the amount when he was returning, and the Lokayukta Police have arrested him and he disputed demand and acceptance and further asserted that immediate statement was obtained by force by Lokayukta officials. Further, the accused has also got examined one witness as DW.1 in support of his contention.
f) On the basis of these contentions, the learned Sessions Judge has framed the following points for consideration.
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1. Whether the prosecution proves beyond all reasonable doubt that on 11.02.2011 at about 1.27 p.m. in front of a Tea Stall near the Mini Vidyana Soudha Premises Bailhongal, which comes under the jurisdiction of Karnataka Lokayukta Belagavi, the accused was trapped for having demanded and accepted the bribe of Rs.3,000/- from the complainant which is other than the legal remuneration in discharge of his duty as a public service, to recommend his file to the Deputy Registrar of Co-op. Societies Belagavi for issue of money lending licence and thereby committed the offence punishable under section 7 of Prevention of Corruption Act, 1988?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time and in pursuance of same transaction the accused being the public servant demanded and accepted illegal gratification of Rs.3,000/- from the complainant by abusing his position as public servant and thereby obtained the pecuniary advantage to himself and thereby committed the offence of criminal misconduct punishable u/s 13(1)(d) R/w section 13(2) of the Prevention of Corruption Act, 1988?
3. What order?
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g) Then, after hearing both the counsels, by impugned judgment, he answered both the points in the negative and acquitted the accused-respondent herein. Being aggrieved by judgment of acquittal, the State has come up in this appeal.
4. Heard the arguments advanced by the learned Special Public Prosecutor appearing for the State and learned counsel appearing for the respondent accused. Perused the records.
5. The learned counsel for appellant would contend that though the complainant has turned hostile, all other witnesses have supported the case of prosecution and the amount was recovered from the accused at a hotel and further the hand wash of the accused has tested positive and there is no proper explanation from his end. He would also contend that the evidence of PW.2 shadow witness coupled with the evidence of PW.9, completely establishes the guilt of accused and even if the complainant has turned hostile, other circumstantial evidence establish the guilt of the accused regarding -8- CRL.A.No. 100161 of 2016 demand and acceptance and the Court has failed to appreciate this aspect. Hence he would seek for indulgence by this Court in this regard by setting aside the impugned judgment of acquittal and prayed for convicting the accused-respondent herein.
6. Per contra, learned counsel for respondent would contend that complainant himself has completely turned hostile and he is not able to identify panchas. He would further assert that other witnesses who are workers in the tea stall as well as owner have also turned hostile and the demand and acceptance is not established by the prosecution. He would further assert that the accused has discharged his duty on 29.01.2011 itself as he has recommended for issuance of licence and there was no work pending with him. He would also assert that PW.5 has admitted the thrusting of the amount and hence he would contend that the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt and as such the trial Court has rightly acquitted the accused -9- CRL.A.No. 100161 of 2016 which does not call for any interference of this Appellate Court. As such, he would seek for dismissal of the appeal.
7. Having heard the arguments and perusing the records, now the following point would arise for my consideration.
"Whether the prosecution proves that the judgment of acquittal passed by the Special Judge is erroneous, arbitrary and suffers from any infirmity so as to call for any interference by this Court?"
8. Having heard the arguments and perusing the records, it is evident that the prosecution though examined nine witnesses, but mainly the prosecution is relying on the evidence of PW.2 and PW.9.
9. There is no serious dispute of the fact that the accused was entrusted with the work of issuance of money lending lincence under KPMR Act and the complainant had also applied for money lending licence on 28.01.2011 itslef. The evidence of PW.7 disclose that the accused has placed the file before him for recommending for issuance
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CRL.A.No. 100161 of 2016of money lending licence and the same was recommended. According to the prosecution, the alleged trap was held on 11.02.2011 at about 1.30 p.m. near a tea stall located in Mini Vidhana Soudha premises at Bailhongal. The prosecution is relying on the evidence of PW.1. The evidence of PW.1 discloses that he has applied for money lending licence, but he did not identify the accused. Further his evidence discloses that he has not approached personally to the accused and his evidence clearly discloses that he has turned hostile to the case of prosecution. No doubt he has supported to some extent, but he has specifically disputed the identity of the accused. Further, he specifically asserts that the Investigating Officer has instructed him that he must pay the amount to accused by any means. The evidence of this witness further discloses that when he offered the amount, the said person refused and he forcibly thrusted it in his pocket. However, he denied that the said person is the accused. Hence, the evidence of PW.1 complainant does not assist the prosecution in any way.
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CRL.A.No. 100161 of 2016
10. PW.2-Sanjiv Uppar is the shadow witness. He has fully supported the case of prosecution in his examination-in-chief. He has also deposed regarding demand and acceptance by the accused for issuance of money lending licence. He in detail narrated pre-trap and post-trap proceedings held. The evidence of this witness discloses that he accompanied the complainant and they together approached the accused and the accused has handed over the letters recommending for issuance of licence and then in a tea shop he demanded the amount and when it was paid by the complainant, he received it and put it in his shirt pocket. His evidence was also discloses that voice recorder was also carried and the amount was recovered from custody of accused.
11. PW.9 is the Investigating Officer and he has also supported the case of prosecution regarding demand and acceptance and trap. At the same time it is also evident that on 29.01.2011 itself a recommending letter for issuance of money lending licence was forwarded.
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CRL.A.No. 100161 of 2016
12. The other material evidence is that the demand and acceptance conversation said to be recorded in a voice recorder. But PW.9 admits that the script of the conversation contained in the voice recorder is not mentioned in the trap mahazar. He further asserts that due to non availability of instruments, conversation of the trap proceedings were not downloaded and not prepared the CD even subsequently. Then the entire story narrated by the prosecution regarding the complainant and shadow witness carrying voice recorder becomes doubtful. It is hard to accept that though the voice recorder was available, there was no instrument for downloading the conversation, which is a lame excuse given by the prosecution.
13. PW.4 is another pancha and he has initially partially turned hostile. But later on supported the case of prosecution. PW.5 is a person who accompanied the complainant. His examination-in-chief discloses that when he along with shadow pancha and accused went to tea stall, there the complainant has put the amount in the
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CRL.A.No. 100161 of 2016pocket of accused. His evidence further discloses that there was no demand and no conversation has taken place. Interestingly this version of the witness is against the case of prosecution and the prosecution has though treated this witness as hostile, this statement that the complainant forcibly thrusted the amount in the pocket of the accused is not at all denied or disputed.
14. Accordingly PW.6 is another eye witness who is running a tea stall and he has also deposed that there was an attempt to thrust the amount in the pocket of the accused and the accused denied the same and at that time Lokayukta Police came there and further proceedings were held. Even in the cross-examination though there was denial of his statement and suggestion regarding he giving statement before the Investigating Officer, etc., but his statement regarding thrusting the amount was not at all denied. The Investigating Officer has not even made any efforts to record the conversation, to record the transcript of the conversation recording in the voice recorder.
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CRL.A.No. 100161 of 2016
15. The Investigating Officer all along suggested that the voice recorder was not played and the transcription was not recorded in view of non availability of the proper instrument. But PW.2 claims that the voice recorder was played but there is no evidence as to who has identified the voice. He has also admitted that CD was not prepared on the basis of voice recorder. The evidence of PW.2 in this regard is inconsistent and contrary. The evidence of shadow witness and complainant does not inspire confidence of the Court. The evidence of PW.2 and PW.4 runs inconsistent and admission given by PW.4 discloses that he has taken 5-6 adjournments for deposing in the matter which disclose his intention. Hence, on appreciation of oral as well as documentary evidence, it is prima facie evident that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. M.O.1 is relied, but M.O.1 was not played. The evidence of PW.2 and PW.4 is inconsistent regarding both hand wash of accused tested positive and as per the case of the prosecution, only right hand wash has tested positive which is again supported by FSL report. But the
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CRL.A.No. 100161 of 2016evidence given by the witnesses in this regard is inconsistent.
16. Looking to these facts and circumstances, the entire case of the prosecution becomes doubtful. The learned counsel for appellant has placed reliance on the cases of Hazari Lal vs. The State (Delhi Administration), reported in Criminal Law Reporter (SC) 1980 page 242, and Dhanvantrai Balwantrai Desai vs. State of Maharashtra, reported in AIR 1964 SC 575 as well as Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi), reported in 2022 3 Supreme (SC) 1248. But the facts and circumstances are entirely different. In the instant case though the evidence on record establish the recovery of the amount, the other evidence also discloses that amount was thrusted in the pocket of the accused and this statement of PW.5 was not challenged by the prosecution. Then mere recovery itself does not establish demand and acceptance. Further, the complainant has also turned hostile and the evidence of mahazar witness is inconsistent and hence the evidence
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CRL.A.No. 100161 of 2016led by the prosecution does not assist in proving the guilt of accused.
17. Further the conduct of the Investigating Officer also creates doubt as there was instruction to give the amount at any cost and further he did not transcript the voice recorder into CD and further the same was also not played. Apart from that, the certificate of section 65B of the Indian Evidence Act is also not obtained.
18. Looking to these facts and circumstances the principles enunciated in the above cited decisions relied by the learned Special Public Prosecutor will not come to the aid of the prosecution in any way. Since the accused has secured an acquittal order before the trial Court, the presumption regarding his innocence is doubled and high standard proof is required to rebut the same. Further, when two views are possible, the view favourable to accused is required to be taken and the view taken by the trial Court is also possible. Under such circumstances, merely because this Court can take a different view, the same cannot be trusted so as to convict the accused.
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CRL.A.No. 100161 of 2016Looking to these facts and circumstances, the judgment of acquittal passed by the trial Court cannot be said to be erroneous or arbitrary so as to all for interference by this Court. Hence, I answer the point under consideration in negative. As such, the appeal being devoid of merits needs to be rejected.
Accordingly, I proceed to pass the following:
ORDER
i) The appeal is dismissed, by confirming the judgment and order dated 22.08.2015, passed by the IV Addl. District and Sessions Judge and Special Judge (PCA), Belagavi, in Special Case No.62/2012.
ii) Send back the records along with a copy of this judgment to the trial Court.
Sd/-
JUDGE MRK