Karnataka High Court
Ratnakar S/O. Mahadevappa Bavikatti vs The State Of Karnataka on 16 February, 2024
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CRL.A No. 2625 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 2625 OF 2012
BETWEEN:
SRI. RATNAKAR S/O. MAHADEVAPPA BAVIKATTI,
AGE: 50 YEARS, OCC: VILLAGE ACCOUNTANT,
UMARANI VILLAGE, TAL: CHIKODI,
DIST: BELGAUM.
...APPELLANT
(BY SRI. SRINAND A. PACHCHAPURE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY POLICE INSPECTOR, LOKAYUKTA
POLICE STATION, BELGAUM,
NOW REPRESENTED BY SPP.
...RESPONDENT
(BY SRI. ANIL KALE, SPL. PP)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
Digitally signed
by
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
SHIVAKUMAR
HIREMATH JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
Date:
2024.02.17 26-03-2012/27-03-2012 PASSED BY THE IV ADDITIONAL
12:22:34 +0530
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE (PCA),
BELGAUM IN SPECIAL CASE NO.30/2009, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 AND 13(1)(D) R/W SECTION
13(2) OF PREVENTION OF CORRUPTION ACT, 1988, AND ACQUIT
THE APPELLANT, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 2625 of 2012
JUDGMENT
Convicted accused has filed this appeal laying challenge to the judgment of conviction and order of sentence in S.C.No.30/2009 dated 26.03.2012 passed by IV Addl. District and Sessions Judge and Special Judge (PCA), Belgaum, wherein, the learned Special Judge has convicted the accused for the offences Punishable under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short P.C. Act) and sentenced him to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of 3 months for offence punishable under Section 7 of the P.C. Act and accused is sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.10,000/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of 5 months for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act. Learned -3- CRL.A No. 2625 of 2012 Special Judge also ordered that both the sentences shall run concurrently.
2. The case of the prosecution as presented before the trial Court are as follows:
In pursuance of purchase of the land bearing Sy No. 50/2, 51/3 and 53/1+2, vide sale deed dated 24.08.2005, complainant-PW.2, approached the accused who was employed as Village Accountant, Umrani Village for mutating his name in the Mutation register, by way of an application and as such, the accused demanded bribe of the Rs.500/- to get the work done and accordingly, he has paid the bribe amount and again, on noticing that, accused has not considered the application as prayed for,PW.2 approached the accused querying regarding the same and accused informed him as to the development of cancellation of his earlier application and suggested him, to submit another application along with the bribe of Rs.500/- for the purpose of certifying the mutation entry on 06.12.2007 and as such, the complainant unwilling to do so, approached the Lokayukta Police, Belgaum and -4- CRL.A No. 2625 of 2012 filed the complaint as per Ex.P2 as against the accused before the PW.9-Investigation officer and he has registered the FIR in Crime No. 20/2007 as against the accused for the offence punishable under aforementioned sections and subsequently, called the panchas PW.6 and PW.7 and has drawn the Entrustment Panchanama as per Ex.P3 and on the same day, laid the trap against the accused in front of the office of the Thasiladar, Chikkodi, in the 'dabba tea shop', where, he accepted the bribe of Rs.500/- from PW.2 and subsequently, PW.9 conducted the chemical examination on the accused and when the phenolphthalein solution turned pink, arrested the accused post drawing the trap panchanama as per Ex.P11.
Thenceforth, PW.9 conducted the investigation and also recorded the statement of the witness and after obtaining the reports from the concerned authorities laid the charge sheet before the Special Court.
3. Post taking cognizance, Learned Special Judge framed charges against the accused for the aforementioned offences and read over the same to the -5- CRL.A No. 2625 of 2012 accused. However, the accused denied the charges and claimed to be tried.
4. In order to prove the charges leveled against the accused before the Special Court, the prosecution in total examined 9 witnesses as P.Ws.1 to 9, so also got marked 22 documents as Exs.P.1 to 22 and got identified 9 material objects as MOs.1 to 9.
5. After completion of the prosecution evidence, the learned Special Judge read over the incriminating evidence of the material witnesses to the accused as contemplated under Section 313 of Cr.P.C. Though, the accused denied the same, he neither chose to examine any witnesses on his behalf nor got marked any documents in support of his defense.
6. Subsequently, after assessment of the oral and documentary evidence placed before the Learned Special Judge, learned Special Judge, convicted the accused/appellant for the charges leveled against him and sentenced him as stated supra. The legality and -6- CRL.A No. 2625 of 2012 correctness of the said judgment is challenged under this appeal.
7. Heard Sri. Srinand A. Pachchapure, learned counsel for the appellant and leaned SPP for the State.
8. Learned counsel Sri. Srinand A Pachchapure would vehemently contend that the prosecution failed to prove the basic ingredient for the offence punishable under Section 7 of the P.C. Act i.e. work of the complainant-PW.2 was pending before the accused, who was the Village Accountant, by adducing cogent evidence or by producing document to that effect. Though, the Investigation Officer seized the application filed by PW.2 for certifying the mutation entry of his landed property as per Ex.P12, the same was allegedly seized in the private office of the accused without drawing any mahazar in the said Office. Further, on perusal of Ex.P12, the same depicts that, it is only a blank sheet signed by PW.2 coupled with some RTC extracts and copies of the sale deed. Further, according to the learned counsel, on perusal of the evidence of PW.5-Tahsildar, he categorically -7- CRL.A No. 2625 of 2012 admitted in the evidence that, there is no such procedure or power vested with Village Accountant to receive application for effecting mutation on the basis of sale; as the same should be filed first in Tahsildar Office and internally, the Department shall send the document for verification to the Village Accountant and admittedly, PW.9 did not find any application in the Tahsildar Officer as per law. In such circumstances, an inference cannot be drawn that the work of PW.2 was pending with the accused as on the date of trap. The learned counsel would contend that Lokayukta Officials obtained his signature on the blank sheet, post laying trap. Further, PW.2 himself admitted in his complaint and in evidence that, an initial application by him for effecting mutation was already dismissed by the concerned authorities i.e., 3 months prior to the date of incident. In such circumstances, as per law, PW.2 has to approach the higher authority questioning the same, instead of filing another application. It is for this reason, filing of another application by PW.2 itself, creates a doubt. Howbeit, Ex.P12 is only a blank sheet containing -8- CRL.A No. 2625 of 2012 the signature of PW.2. In such circumstance, the prosecution utterly failed to prove that the work of PW.2 was pending with the accused as on the date of trap.
9. He would further contend that, in respect of the demand and acceptance of the illegal gratification by the accused is concerned, the prosecution also failed to prove the same for the reason that, admittedly, apart from the oral say of PW.2 in his chief evidence, there are no other materials to prove that the accused had demanded illegal gratification from PW.2. Admittedly, the prosecution failed to record the conversation between PW.2 and the accused. Further, PW.6-shadow witness in his cross- examination categorically admitted that, on the date of incident he did not hear the demand made by the accused with PW.2. He also admitted that he did not hear the exact conversation allegedly held between PW.2 and the accused. Further, PW.7-co-pancha, deposed in his evidence that, PW.2 informed him that the accused had demanded and accepted the illegal gratification. Hence, -9- CRL.A No. 2625 of 2012 he is a hearsay witness to the prosecution case/alleged trap.
10. He would further contend that, though PW.2- complainant supported the case of the prosecution in his chief-examination, however, during his cross-examination, he has completely given go by to the prosecution case. In such circumstance, much evidentiary value cannot be attached to his evidence. As far as the acceptance of the illegal gratification by the accused is concerned, according to the prosecution, PW.2 handed over the amount to the accused in a tea stall near Tahsildar Office adjacent to Bijapur-Belagavi Road. However, the said tea stall was owned by PW.3 and run by PW.4 and they are eye- witnesses to the incident and have turned hostile to the prosecution case. The Lokayukta Officials failed to draw a mahazar in the scene of occurrence and instead they have drawn the trap panchanama in the Office of PW.5- Tahsildar, Chikkodi. Learned counsel submit that, accused in his 313 Statement and also during the trap, has clearly put forth his defense that, complainant-PW.2 had forcibly
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CRL.A No. 2625 of 2012thrusted the tainted currency in his pocket and as such, foisted a false case against him. Accordingly, he prays to allow the appeal.
11. Per contra, learned Special Public Prosecutor vehemently contend that the judgment under this appeal does not suffer from perversity or illegality and learned Special Judge by rightly appreciating the evidence of material witnesses so also considering the documents placed before him, passed well reasoned judgment; which does not call for any interference.
12. He would further submit that the prosecution has triumphantly proved the demand and acceptance of illegal gratification by the accused so also the basic ingredient that the illegal gratification is made in respect of the pendency of work of PW.2 with accused. According to the learned SPP, on perusal of the evidence of PW.2- complainant, clearly deposed in his complaint-Ex.P2 and in his chief-examination that he filed application before accused, seeking for effecting mutation of his landed property for which the accused demanded Rs.500/- illegal
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CRL.A No. 2625 of 2012gratification. For which, he lodged the complaint and on the date of trap, the Lokayukta Police conducted a entrustment panchanama as per Ex.P3, in their Office, in the presence of himself and PWs.6 and 7. Thereafter, they all went to the Tahsildar Office as per the instruction of the accused and near the Tahsildar Office; in a tea stall, he had handed over the tainted money to the accused and the accused received the same. Subsequently, Lokayukta Police conducted the trap mahazar as per Ex.P.11, in the Tahsildar Office. Before drawing trap panchanama, the Lokayukta Police seized the application submitted by PW.2 from the private office of the accused. This evidence of PW.2 is clearly supported by PWs.6 and 7, who have deposed in a similar manner. As such, there is no reason to discard the testimony of these 3 witnesses. The learned SPP further submit that, though PW.2-complainant turned hostile to the prosecution case during the course of his cross-examination, the same was conducted after a gap of 3 months from the date of initial chief-examination and the accused won over the witness in between this
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CRL.A No. 2625 of 2012period. As such, the evidence of PW.2 cannot be discarded. He would further contend that the accused failed to explain/put forward his defense to disbelieve the version of prosecution and he also failed to examine any witness on his behalf.
13. The learned SPP further contend that the Lokayukta Police seized the application filed by PW.2 as per Ex.P12 in the private office of the accused immediately after the trap. The same is forthcoming in Ex.P11-trap panchanama. Further, Ex.P12 contains the documents pertaining to the landed property of PW.2 relating to which work of PW.2 is pending. In such circumstance, according to learned Addl. SPP the said aspect is also proved by the prosecution. As such, presumption under Section 20 of PC Act, could be drawn against the accused in the absence of valid defense. Accordingly, he prays to dismiss the appeal.
14. Having heard the learned counsel for the appellant/accused so also the learned SPP and on perusal
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CRL.A No. 2625 of 2012of the records made available before me, in my conscious opinion, the point that would arise for my consideration is:
"i. Whether the Judgment under this appeal suffers from any perversity or illegality?
ii. Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of PC Act?"
15. As both points are inter-linked to each other, they are taken up together for consideration. Accordingly, on careful perusal and re-appreciation of the evidence placed by the prosecution before the trial Court, I find that;
PW.1-Balasaheb Thirth, Assistant Executive Engineer, drawn spot sketch as per Ex.P1.
PW.2-Dashrath Borannavar, Complainant, deposed in his evidence that, he had purchased land bearing Sy no. 50/2 measuring 1 Acre 17 Guntas from one, Shantha Borannavar, Sanju Borannavar and Raju Borannavar for a consideration of Rs.1,28,000/- and he had also purchased another land from them for a sale consideration of Rs.2,000/-. Further, post purchase he had submitted an
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CRL.A No. 2625 of 2012application to the accused in his private office to mutate his name in the record of rights along with the copy of the sale deeds. Further he deposes that post 15 days of submitting an application, he was informed by the accused that, the application filed by him was cancelled and accordingly, he deposes that, as the time period of the application has been over with, accused guided him as to submitting another new application and accordingly, accused took signatures on a blank sheet, on a promise that he would fill up the same and effect the necessary mutation on behalf of the complainant is concerned. Thereafter, PW.2 deposes that, when accused denied for speedy creation of his record of rights diary, he on the advice of his well-wishers that if approaches the Lokayukta office, the work will be expeditiously completed, he approached the Lokayukta police and when he was enquired as to the bribe amount is concerned, he deposed that the accused had asked him a bribe of Rs.500/- and accordingly submitted a written complaint as per Ex.P2. Consequently, he, in the presence of panchas,
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CRL.A No. 2625 of 2012who were called for, by the Lokayukta officials, handed over 5 notes of Rs.100 denominations to the police officials and post chemical examination, seized the chemical solutions obtained in the process of keeping the tainted money in his shirt, in the presence of panchas and the chemical solutions were marked in M.O.1 as per Ex.P3 and photographs taken during the entrustment panchanama are rerecorded as per Exs.P4 to 6. Further, he along with the officials and panchas reached the private office of the accused and he went inside the private office of the accused and a person in the private office informed him that accused had been to the office of the Tahsildar for a meeting. Accordingly, they reached near the office of the Tahsildar and waited for the accused till the meeting was completed and further when accused came out of the office of Tahsildar, he approached accused and enquired as to the application and he informed him that he has not filled the same and it would take another 15 days to do the needful and accordingly, he demanded Rs.500/- from him. Pursuantly, they both reached near the tea stall
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CRL.A No. 2625 of 2012situated adjacent to Bijapur-Belagum road, 100 meter nearby Tahsiladar office, belonging to PW.3 and run by PW.4 and there, PW.2 handed over the tainted money to him and accused kept it in the back pocket of the trousers and subsequently, PW.2 deposed that, when all this aspect had happened, PW.6 had accompanied him and witnessed the entire incident. Subsequently, by gesture he signalled both the Lokayukta officials and PW.7; who arrived at the spot and caught hold of the accused and took him to the nearby Tahsildar office and there Lokayukta officials conducted the chemical examination and again took him to private office and seized the documents pertaining to PW.2 in his private office as per Ex.P12 and again took him to Tahsildar office and subsequently has drawn Ex.P11, in which the chemical solution that turned into pink colour was seized in M.O.2 and 3 and the accused tainted trouser was recovered as per M.Os.5 and 6 and the tainted money also came to be seized form the back pocket of the accused as M.O.4. He also identified Exs.P7
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CRL.A No. 2625 of 2012to 10 photographs taken at the time of drawing the trap panchanama.
Further, subsequent to his examination on 27.07.2011, he was again called for cross-examination on 28.10.2011, wherein he has totally turned hostile to the prosecution case.
PW.3-Mallikarjun Sayyad, owner of the cart in which tea shop was situated, turned hostile to the prosecution case.
PW.4-Mangala Ambale, alleged eye-witness to the incident, person who was running a tea shop in a cart owned by PW.3 near the Tahsildar office, turned hostile to the prosecution case.
PW.5-Basappa Ghote, the then Tahsildar, he was made known about the trap and subsequently, trap mahazar had also been conducted in his office as per Ex.P11. He has further deposed that the Lokayukta officials has also confiscated two documents as per Exs.P12 and 16 and subsequently, he has deposed in his
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CRL.A No. 2625 of 2012cross examination that, though he is unaware of the pendency of the application of PW.2, accused is neither the competent authority to receive such application nor he is the competent authority to issue the same. As, PW.2 has to submit the application in Computer Branch of the Tahsildar office, which will be forwarded to the Revenue Inspector and Revenue Inspector in-turn sends such applications for verification for Village Accountants and he also deposed that, it the Revenue Inspector who has the power to open and issue a diary like one seized under Ex.P16.
PW.6-Basappa Ghote, the then second division assistant, shadow witness, deposed that, on the day of trap he reached Lokayukta office and pursuant to the same he has identified Ex.P14-deputation letter. Thereafter, post instructions and chemical examinations, Ex.P3-Entrustment Mahazar came to be drawn in the presence of himself and PWs.2 & 7. Consequently, they reached the office of PW.5 and he followed the complainant-PW.2 to the office of PW.5 and subsequently,
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CRL.A No. 2625 of 2012when accused came out of the office of PW.5 and along with PW.2 went near the Dabba Tea shop, he followed them secretly and he further deposed that when PW.2 enquired about the application and by then accused demanded for illegal gratification and as such PW.2 handed him the tainted money and subsequently, accused kept them in his trouser pocket and as such, on gesture from PW.2, Lokayukta police officials along with PW.7-co- pancha trapped the accused and caught hold of him and when enquired, PW.2 has informed the police about the demand and acceptance and when he was quizzed he have informed them that, he has witnessed complainant- PW.2 handing over the money to the accused. He has further deposed that, latterly, chemical examination and trap mahazar was conducted in the office of PW.5 and accused has also given his statement as per Ex.P15. Subsequently, he deposes that, accused was sent with Lokayukta police officials to his private office and they returned along with documents of pending application which included an empty sheet signed by PW.2.
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CRL.A No. 2625 of 2012Consequently, a diary and those applications were confiscated from the accused as per Ex.P12 and 16. Thenceforth, he deposes that trap panchanama as per Ex.P11 was drawn. Further in his cross examination he has also deposed that he had not visited to the private office of the accused and he also further deposes that at the time of drawing trap mahazar, PW.5 was not present at the incident. Further, though he deposes that he has witnessed the handing over of the money, he concedes to the fact that he was 15 foots behind them and he has not overheard the conversation between accused and PW.2.
PW.7-Shadevareddi Koti, panch witness, reiterated the version of PW.6, except that he was standing near the office of the PW.5 and on gesture by PW.2, he along with Lokayukta officials caught hold of accused and he has heard from PW.2 that accused had demanded and money and accordingly, PW.2 had handed over the tainted money to the accused and he has then recovered the tainted money from the back pocket of the trouser of the accused during trap mahazar. Further, he, in his cross-
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CRL.A No. 2625 of 2012examination, has admitted to the fact that, he has neither witnessed the incident nor has overheard the same.
PW.8-Dr. Ravi Shankar-the then commissioner of Belgavi, issued sanction order as per Ex.P.19 PW.9-Ramappa Patil, the then Lokayukta Police Inspector, Investigation officer, received the complaint as per Ex.P2 and the registered the offence against the accused as per Ex.P20 and post arrival of panchas, drawn Entrustment panchanama as per Ex.P3 and also conducted the trap post gesture of PW.2 at the scene of occurrence and has drawn trap panchanama in the office of PW.5 as per Ex.P11. He has deposed that on the date of trap they were hiding in the vicinity of office of PW.5 and as such, PW.2 and 6 went inside the office of PW.5 and returned with the accused and then went near the tea shop and on gesture, they trapped the accused and took him to the office of PW.5 and subsequently, has drawn trap panchanama as per Ex.P11, post obtaining the documents from his private office as per Ex.P12 and also seizing the register as per Ex.P16. He also conducted the
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CRL.A No. 2625 of 2012investigation and recorded the statement of witnesses and post obtaining the report from the concerned has laid the charge-sheet before the Special Court.
16. Before proceeding with the case on hand, I would refer to the decision of the Hon'ble Apex Court in Neeraj Dutta v. State (NCT of Delhi), reported in (2023) 4 SCC 731, wherein, the Hon'ble Apex Court while summarizing the principles and scope of Section 7 and 13 of PC Act has held in paragraph No. 88 as under-
"88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
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CRL.A No. 2625 of 201288.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-
giver without there being any demand from the public servant and the latter simply accepts the offer and receives illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational
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CRL.A No. 2625 of 2012facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns "hostile", or has died or is 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 trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.
17. Keeping in view the principles summarised by the Constitutional Bench of the Hon'ble Apex Court, if the
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CRL.A No. 2625 of 2012case on hand is carefully examined as to the evidences tendered before the Special Court, PW.2 is the complainant in this case, has deposed that, in view of the purchase of the landed properties in the year, 2005, he had applied for effecting mutations of these landed properties in the private office of the accused and subsequently, after gap of 15 days, when he visited the accused again, it was informed to him by the accused that, his application has been rejected and as the time period has also been lapsed, accused asked him to file another application and accordingly, took signatures on the blank sheets along with the copies of the sale deeds and asked for an illegal gratification of Rs.500/- to get his work done smoothly. Further, he also deposes that, on this note, he approached the Lokayukta police and filed the complaint and Lokayukta police post completion of pre-trap procedures, on 07.12.2007, reached to the office of PW.5 where the accused was attending meeting, along with himself, PW.6 and 7. He further deposed that, PW.6 accompanied him to the office of PW.5 and they waited
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CRL.A No. 2625 of 2012outside until accused arrived outside the office and post accused arrived outside the office, they accompanied him to the 'dabba tea shop' which was situated across the road and there the demand and acceptance of bribe was made by the accused and he gestured the Lokayukta officials and post gesture, they laid the trap and subsequently, accused was taken to the office of PW.5 and chemical examination was conducted and post conducting chemical examination accused was taken to his private office with the officials only and obtained the documents which PW.2 had given to accused and conducted the trap mahazar as per Ex.P11 and took the accused along to Lokayukta Police station, Belagum.
18. In order to prove the pendency of the work, the prosecution has relied on the documents at Ex.P2, Ex.P12 and 16 so also Ex.P11 along with the evidences of PW.2,5 and 9. Accordingly, if the evidence of complainant-PW.2 is seen along with his complaint-Ex.P2, he, in his complaint, had expressed that he had purchased the lands in the year 2005 and in that regard, he had approached
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CRL.A No. 2625 of 2012accused requesting him to effect mutations and also to open a diary in his name. Further, he has stated in the complaint that, even when the earlier application was filed, he had bribed the accused Rs.500/- as demanded, to get the work done. Further, he submits that, after filing the first application he has again approached the accused post three months and when enquired, he was told by the accused that the earlier application filed by him was cancelled and as such, he, on suggestion, signed on a blank paper and also gave the documents to the accused, for the purpose of applying the application afresh. If this complaint is seen along with his deposition, in his deposition he initially never mentions as to the illegal gratification demanded by the accused and only subsequently, he states that he was advised by his well- wishers to approach the Lokayukta Police to get the work done swiftly and as such, he approached the Lokayukta police and informed that, he had pending work with the accused for which accused had sought for bribe. He further deposes that, he has approached the accused
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CRL.A No. 2625 of 2012within 15 days of filing the earlier application, in his private office and there, on suggestion of the accused, has signed the second application i.e., blank sheets as per Ex.P12. Now, both these evidence are seen from the angle of evidence of PW.5-Thasildar, he has clearly deposed before the Court, that as on the date, there were no application filed before him, seeking any relief by PW.2 and he also submits that, the right channel to submit such applications are through the office of PW.5 in the Computer Branch and the same reaches Revenue Inspector and then Revenue Inspector forwards it to Village Accountant for verification. He has further deposed that, no such pendency are being reported in his office on verification of inward and outward register maintained in his office. Additionally, he has also deposed that, Village Accountant is not a competent authority to neither effect a Mutation on such application nor to either Prepare or issue a diary as sought for by the PW.2 and he deposes, it is the Revenue Inspector who is the competent authority to issue the same. Nextly, the evidences deposed and the
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CRL.A No. 2625 of 2012complaint are collectively seen with the evidence of PW.9- investigation officer and the seized documents as per Ex.P12, these documents are nothing but an empty sheet of paper, in which both PW.2 and the accused signature exists. The recovery of the said documents were also made from his private office, wherein, only Lokayukta officials had accompanied the accused and none else. Even the trap mahazar was also drawn in the office of PW.5. Hence, even though the later deposition of PW.2 is considered as accused has won over the PW.2, if his initial deposition is considered also, there are one too many contradictions and also creation and alteration of facts of the case of prosecution and moreover, there are no explanation forthcoming, as to why he had not appealed against the cancellation of his earlier application.
19. Be that as it may, PW.5 has clearly deposed as to the fact that, accused is neither a competent authority to receive such apparition and nor to effect mutation or issue the diary pertaining to the same. It is the Revenue Inspector, who has the power to effect mutation and also
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CRL.A No. 2625 of 2012open a diary and issue the same. Admittedly, there was no mahazar drawn in the place where the EX.P12- signed blank sheet with documents were seized, though it is alleged that the same are seized in the private office of the accused. The prosecution also failed to prove any documents to show that the accused was running such private office. If the documents pertaining to PW.2 are seized in the private of the accused, or from any other place, the same should be seized in a procedure known to law. Hence, on these aspects, in my considered opinion, in the absence of corroboration as to the recovery of the documents-Ex.P12 and also for the discrepancies mentioned hereinabove, the prosecution has failed to prove the case beyond reasonable doubt as to the pendency of work of PW.2 with the accused is concerned. As rightly contended, the signatures on the blank sheets can be obtained from the concerned parties anytime and anywhere i.e., even pursuant to conducting the alleged trap. Hence, in order to enunciate the legal position regarding the same. This Court would now rely upon the
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CRL.A No. 2625 of 2012decision of the Co-ordinate Bench of this Court in Chandrasha Vs The State of Karnataka through Lokayukta Police, Kalaburgi in Crl.A.No. 200105/2015 decided on 16.02.2012 , wherein, the Co-ordinate Bench in paragraph No.17 and 20 has held as under;
"17. The co-pancha is examined as PW.3. He also supported the case of the prosecution. Other material witnesses are PW.4 the Second Division Assistant of Sub-Treasury, Afzalpur and PW.5 is the Accounts Head, SubTreasury, Afzalpur. However, in their evidence, Ex.P.8 came to be marked along with annexure. On considering Ex.P.18, a sum of `43,323/- being the bill has already been passed on 29.07.2009 itself, as could be seen from the endorsement made on the bills itself. These two documents were seized by the Lokayukta police in the presence of panchas and it is relied on by the prosecution themselves. As could be seen from Ex.P.18 coupled with the oral testimony of PWs.4 and 5, it is seen that as on the date of trap i.e., 05.08.2009 there was no work pending of the complainant with the accused inasmuch as he has already passed the bills on 29.07.2009. When the bills are already been passed on 29.07.2009, question of making a demand on 05.08.2009 and the accused accepting the illegal gratification in a sum of Rs.2,000/- cannot be countenanced in law.
***
20. In view of the legal principles enunciated in A.Subair's case (supra), since the work was not pending before the accused as on the date
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CRL.A No. 2625 of 2012of trap, the important ingredient to attract and complete the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act cannot be sustained. Accordingly, the finding recorded by the learned trial Judge needs to be interfered with....."
(Emphasis supplied by Me)
20. Hence. Keeping in view the above enunciated principle, I extend the principle of benefit of doubt in favour of the appellant/accused and accordingly, hold this contention in favour of the appellant/accused.
21. Further, in order to prove the demand and acceptance of tainted money by the accused, the prosecution has relied mainly upon the evidence of PW.2 to 4 and PW.6 and 7 so also PW.9. PW.2 being the complainant, in his version has stated that, on the day of trap, shadow wintess-PW.6 had accompanied him throughout and until completion of meeting they had waited for the accused and subsequently, when he came out, they accompanied the accused to tea shop cart nearby and there, he had demanded the bribe money and PW.2 had handed over tainted money to the accused and post gesture, police had conducted the raid. On the other
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CRL.A No. 2625 of 2012hand, PW.6 contends that, though he had accompanied PW.2, he was not standing with the Complainant-PW.2 and through entire conversation, he had 15 foots distance to the accused where he had witnessed that PW.2 had handed over the money to the accused and he also states that, he has not overheard the conversation between the accused and PW.2 near the tea shop cart. Moreover, PW.4, person who was running the tea shop has totally turned hostile to the case of prosecution. Similarly, PW.7 panch witness has also deposed that, he has heard about the demand and acceptance from PW.2 and as such, he would be a hear say witness and reliance cannot be placed upon his evidence to prove the guilt of the accused. In addition to these, discrepancies, the investigation officer- PW.9 has deposed that, both PW.2 and 6 had been inside the office of PW.5 and returned with the accused and then they both proceeded to tea shop across the road and subsequently, on gesture of PW.2, they caught hold of the accused with the tainted money. Hence, if the discrepancies in all their evidences are considered
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CRL.A No. 2625 of 2012together, there arises doubt as to who accompanied PW.2 to the office of PW.5 and also that there is no evidence beyond reasonable doubt to prove that accused had demanded the money, in view of the pending application, for the reason that, PW.6 has deposed he was shadowing both accused and PW.2 at a distance of 15 foots and did not hear the conversation and only witnessed the handing over of the tainted money. PW.7 panch witness has also stated that he has heard from PW.2-complainant as to demand and acceptance is concerned. Admittedly, there are no recordings of the conversations between PW.2 and the accused are made in the case on hand and hence, keeping in view that there are no pendency of work with the accused as stated supra, so also the fact that accused in his defence statement as per Ex.P15 has denied the acceptance of bribe amount and has stated, that it was forcefully thrusted upon him, in my opinion, an inference as portrayed by the prosecution, cannot be drawn as to the demand and acceptance of the bribe amount is
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CRL.A No. 2625 of 2012concerned and accordingly, I hold this contention in favour of the accused/appellant herein.
22. Further, the Hon'ble Apex Court in the case of V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150 relying on the judgment of Mukut Bihari v. State of Rajasthan, reported in (2012) 11 SCC 642 while emphasizing on presumption under Section 20 observed that:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how
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the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
(Emphasis underlined by me)
23. Further, The Hon'ble Apex Court in Neeraj Dutta's case (supra) in paragraph 15, by referring the case of N.Vijayakumar vs. State of Tamil Nadu reported in (2021) 3 SCC 687 held that "absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence and the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved. Further, the Hon'ble Apex Court in paragraph 18 held as under:-
"18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a
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reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
24. In view of the above, it is settled position of law laid down by the Hon'ble Apex Court that, the prosecution must establish each and every circumstances from which the prosecution wants the Court to draw a conclusion of the guilt. Moreover, the Hon'ble Apex Court in the case of P.Sathyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152 held that, the proof of demand cannot be proved by the evidence of other witnesses, in
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CRL.A No. 2625 of 2012such eventuality though such recovery is proved, the benefit of doubt should be extended to the accused. Mere acceptance of any amount allegedly by way of demand, ipso facto, would not be sufficient to bring home the charges under leveled under Sections 7 and 13 of the PC Act. In the said judgment, the Hon'ble Apex Court by referring the judgment of Sujit Biswas vs. State of Assam reported in (2013) 12 SCC 406 held that, suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, the Courts must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
25. Consequently, for the discussion made herein above, I am of the considered opinion that, the judgement of conviction passed by the learned Special Judge requires interference and accordingly, I answer the above raised
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CRL.A No. 2625 of 2012points in affirmative and negative and proceed to pass the following -
ORDER
(i) The appeal is allowed;
(ii) judgment of conviction and order of sentence in S.C.No.30/2009 dated 26.03.2012 passed by IV Addl.
District and Sessions Judge and Special Judge (PCA), Belgaum, for the offence punishable under Section 7 and 13(1)(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 is hereby set-aside; The appellant/accused is acquitted for the charges leveled against him under Sections 7 and 13 (1)(d) r/w. 13(2) of P.C.Act, 1988.
(iii) The bail bonds executed by the accused stands cancelled.
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CRL.A No. 2625 of 2012
(iv) The fine amount paid, if any, by the accused shall be refunded to the accused on proper identification.
Sd/-
JUDGE Svh/-
LIST NO.: 1 SL NO.: 46