Karnataka High Court
The State Of Karnataka vs Sri Venkatesh on 23 August, 2024
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NC: 2024:KHC:33979
CRL.A No. 1033 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 1033 OF 2013 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR,
LOKAYUKTHA POLICE STATION,
BANGALORE RURAL DISTRICT,
BANGALORE.
...APPELLANT
(BY SRI B.S. PRASAD, ADVOCATE)
AND:
SRI VENKATESH
S/O LATE RAJANNA,
AGED ABOUT 27 YEARS,
LICENCED SURVEYOR,
ANEKAL TAHSILDAR'S,
OFFICE, BANGALORE RURAL DISTRICT
Digitally signed
by BANGALORE.
SHAKAMBARI R/O NO.209, MARUTHI LAYOUT
Location: HIGH SARASWATHI VIDYAMANDIR ROAD,
COURT OF 2ND FLOOR, C/O JOSPHINE MARY,
KARNATAKA BANGALORE.
...RESPONDENT
(BY SRI NAGARAJ DAMODAR, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 06.11.2012
PASSED BY THE PRL. S.J., BANGALORE RURAL DIST.,
BANGALORE IN SPL.CASE NO.190/2011 -ACQUITTING THE
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CRL.A No. 1033 of 2013
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 7,
13(1),(d)(2) OF PREVENTION OF CORRUPTION ACT.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal arises out of the judgment dated 06.11.2012 passed by the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru in Special Case No.190/2011 acquitting the accused of the charges under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C.Act').
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. Briefly stated the case of the prosecution is that, one Muniraju Goravigere the Secretary of State Labour Union has lodged a complaint on 10.02.2009 by appearing before the Inspector of Police, Lokayukta, -3- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 Bengaluru Rural Division, Bengaluru, stating that, he is the resident of Kalanayakanalli, Banakanahalli Post, Anekal taluk. He is the owner in possession of 2 acres 20 guntas of land in Survey No.69. For the purpose of effecting bifurcation/phodi of the said land, he has submitted an application to the Survey Department on 13.01.2009 as per the Government Rules and deposited Rs.510/- towards survey before the Survey Office at Anekal and obtained a receipt to that effect. It is stated by him that, on 06.02.2009, he received a telephone call from one Sri Venkatesh, who is the accused in this case and asked complainant to come to his office at Anekal. It is stated by the accused that, on 11.02.2009 at 11.00 a.m., he will effect phodi in respect of the land belongs to the complainant. It is alleged that, for the said work, accused demanded Rs.5,000/- as bribe from the complainant. Otherwise, the accused told that, it is not possible for him to effect phodi work. When the complainant demanded to reduce the bribe amount, the accused had agreed to receive Rs.4,000/-. The accused told that, from the said -4- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 amount, he has to pay some amount to the surveyor as well as Tahsildar. It is alleged that, as the complainant was not interested to pay the bribe amount to the accused, he went to the office of the Lokayukta at 3.00 p.m. on 10.02.2009 and lodged a complaint as per Ex.P1.
4. Based upon the said complaint, the Lokayukta Police registered the crime in Crime No.5/2009 for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the P.C.Act and set the criminal law in motion. PW.6 - Investigating Officer on receipt of the complaint prepared the FIR as per Ex.P14 and submitted the same to the jurisdictional Court. He requested the complainant and two witnesses, who were examined as PW.1 to PW.3 respectively, to report to his office at 8.00 a.m. on 11.02.2009.
5. It is the case of the prosecution that, accordingly, PW.1 to PW.3 appeared before PW.6 at 8.00 a.m. on 11.02.2009 in his office. PW.1 - Complainant has produced Rs.4,000/-, which he agreed to pay the same to -5- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 the accused/surveyor towards the bribe amount as demanded by him. According to the case of the prosecution, as per the instructions of the Investigating Officer, panch witnesses counted the currency notes, recorded there denominations and one of his staff namely, Satyanarayan applied phenolphthalein powder to the currency notes produced by the complainant. They prepared pre-trap panchanama. Thereafter, it was instructed to the panch witnesses and his staff to accompany the complainant and also the Investigating Officer with panchas.
6. On the same day itself, they reached the office of the accused at Anekal at 11.45 a.m. They parked their vehicle at a distance of 200 ft. from the office of the accused. He gave instructions to PW.1 and PW.2 to visit the office of the accused and pay the said amount and gave a pre-arranged signal to the Investigating Officer and other police staff. Accordingly, PW.1 and PW.2 went inside the home office of the accused. At about 12.15 p.m., -6- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 PW.1 gave a signal by folding his right hand sleeve of his shirt. Immediately, the trap team rushed to the office of the accused, which was located on the second floor of the same building. Thereafter, the Investigating Officer enquired with PW.1 and PW.2 with regard to the incident of demand and acceptance of bribe amount by the accused. Both have told that, the accused has demanded and received the tainted notes and kept the same in his shirt pocket. Thereafter, the Investigating Officer has prepared the Sodium Carbonate solution in two bowls. The accused was asked to wash his hands separately in each of the bowls. Because of his washing of the hands, the solution turned into pink colour. Accordingly, the sample was collected in two bottles, which were marked at MO.4 and MO.5. At the spot itself, the Investigating Officer has prepared panchanama in the presence of panchas and seized all the material objects. He also showed the articles pertaining to the complainant's application and they were seized by the Investigating Officer. It is stated by the accused in his explanation that, -7- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 by force the said money was thrust into his hands by the complainant. The said statement is at Ex.P7. The Investigating Officer arrested the accused and thereafter, produced him before the Court. On completion of the investigation and on collecting necessary documents, the Investigating Officer has filed the charge sheet against the accused on 15.02.2011 for the aforesaid offences.
7. Before the learned Special Court, to prove the guilt of the accused, prosecution examined in all six witnesses as PW.1 to PW.6 and got marked Exs.P1 to P18 with respective signatures thereon. On behalf of the defence, Exs.D1 and D2 were marked during the course of cross-examination. The prosecution has also got marked MOs.1 to 10 in support of its case.
8. On closure of the evidence of both side, after recording the statement of the accused under Section 313 of Cr.P.C. and on assessing the evidence, the Trial Court found the accused not guilty of the aforesaid offences and passed an order of acquittal of the accused as per -8- NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 judgment and order dated 06.11.2012. This is how, now the complainant/State is before this Court questioning the acquittal of the accused for the aforesaid offences by preferring the present appeal.
9. It is argued by the learned panel counsel for the appellant/State that, from the evidence of PW.1 and PW.2, it is duly proved that, the there was demand of bribe amount by the accused. The complainant had initially agreed to pay Rs.4,000/- to the accused. Accordingly, when there was a demand and at that time, the trap was conducted. The Investigating Officer has followed all the mandatory provisions as provided under the P.C.Act. Therefore, he submits that, from the evidence placed on record by the prosecution, it is proved that, the accused is guilty of the aforesaid offences. In support of his submission, he has relied upon some of the evidence spoken to by the witnesses especially that of the complainant and shadow witness coupled with the evidence of the Investigating Officer. -9-
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10. He pointed out that, though there are certain contradictions and omissions in the evidence led by the prosecution, but the way in which the accused has demanded the bribe amount and the way in which he has received the same has been spoken to by PW.1 and PW.2, which clearly establishes the ingredients of the provisions of the P.C.Act. He submits that the Trial Court without properly appreciating the evidence placed on record has wrongly acquitted the accused. Therefore, he prays to allow the appeal by convicting the accused.
11. As against this submission, learned counsel for the respondent/accused has supported the reasons assigned by the learned Trial Court in acquitting the accused. The complainant is the Secretary of the Labour Union and to file a complaint, he had used the letter head of the said union. According to the complainant himself, they are fighting against the corruption and once in 15 days, they conduct meetings and just to get fame to the said union, a false case has been registered against the
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 accused. When the accused being the private licenced surveyor, it was entrusted to him to effect phodi work of the land of the complainant and nothing was remained with the accused. The said private surveyor cannot be termed as a person, who is a public servant. As the accused is a licenced surveyor, to harass him, a false case has been registered by the police and there is no demand of bribe money at all. By force, the complainant has thrust the said tainted money in the hands of the accused. By that time, the Investigating Officer has appeared in the office of the accused and conducted raid on him. To that effect, the accused has given explanation as per Ex.P7 before the Investigating Officer. He submits that, the learned Trial Court has taken into consideration all these aspects while answering the points for consideration and has rightly acquitted the accused. When it is an acquittal judgment, it is submitted that, the same cannot lightly by interfered by the appellate Court. He submits that, if two views are possible, one in favour of the accused has to be preferred and benefit be given to the accused. Relying on
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 the contradictions, omissions and discrepancies alleged to have been brought on record in the cross-examination of the witnesses, he prays to dismiss the appeal.
12. I have given my anxious consideration to the arguments of both the side and meticulously perused the records.
13. In view of the rival submissions of both the side, the only point that would arise for my consideration is:
"Whether the impugned judgment passed by the Trial Court in acquitting the accused for the alleged offences calls for interference by this Court?"
14. In a case of present nature, it is the bounden duty of the prosecution to prove the ingredients of the offences made out against the accused. Even under the provisions of the P.C.Act, there is a presumption under Section 20 of the P.C.Act, which is a rebuttal presumption. On reading of the evidence of the prosecution witnesses,
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 the complainant is examined as PW.1. As per his evidence, he wanted to effect phodi with regard to his landed properties. Therefore, he moved an application before the survey authorities one month prior to the alleged incident of trap on the accused and even the date was fixed for conducting the survey. On that day, the accused called him and demanded the bribe money and otherwise, he told that, he will not proceed with the survey proceedings. The accused has demanded Rs.5,000/- as per the contents of the complaint. As the complainant was unable to pay the said amount, he agreed to pay Rs.4,000/-. When he was paying the said amount, trap was conducted by the Investigating Officer. Thus, on scrupulous reading of the contents of the complaint and if it compared with the evidence spoken to by PW.1, he has reiterated the contents of the complaint in his evidence on oath. According to him, on 13.01.2009 itself, he had deposited Rs.510/- in Anekal office and obtained a receipt to that effect.
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15. According to PW.1, on 06.02.2009, the accused called him over his mobile phone and asked to meet him. Accordingly, he went to the office of the accused and met him at about 1.00 p.m. For the first time before the Court on oath, he has stated that, when he met the accused for effecting the phodi work, accused has demanded Rs.10,000/- as bribe from him. But, the complaint shows that, the accused has demanded Rs.5,000/- from the complainant. He states that, he has paid the Government fees and therefore, he was not ready to give any bribe amount to the accused. At that time, accused has demanded Rs.5,000/- as bribe otherwise he will not effect the phodi work. When there was a request to reduce the bribe amount, it was reduced to Rs.4,000/-.
16. It is further stated by PW.1 that, on 10.02.2009, he lodged a complaint to the Lokayukta police at about 3.00 p.m. as per Ex.P1 under the letterhead of his union. He states that, on the following day at about 8.00 a.m. as instructed by the Investigating Officer,
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 himself and other witnesses went to the office of the Lokayukta and there was request to the panchas to participate in the raid and accordingly, they agreed. He speaks with regard to preparation of pre-trap panchanama in his presence and in the presence of panchas. It has come in the evidence of PW.1 that, when pre-trap panchanama was conducted, MOs.1 and 2 were seized by the Investigating Officer after washing the hands, which were smeared with phenolphthalein powder. On the same day itself at about 11.45 a.m., they went to the office of the accused. The Lokayukta vehicle was parked at a distance of 200 ft. from the office of the accused. Both PW.1 and PW.2 went inside the office of the accused and at that time, the accused was sitting on his seat. He states that, he enquired with the accused as to whether he is going to effect phodi work, at that time, accused has demanded the bribe amount. Accordingly, the complainant gave the tainted money of Rs.4,000/- in the hands of the accused. The accused took the said amount and put in the left pocket of his shirt. Highlighting this
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 evidence, the learned counsel for the appellant submits that, the evidence of PW.1 is very much clear with regard to demand and acceptance of the bribe money by the accused. He submits that after giving the said money, as the complainant gave a signal to the Investigating Officer, all the staff went inside the office of the accused and conducted raid on him. It was PW.1 and PW.2 showed the accused and also showed that the complainant has given Rs.4,000/- in the hands of the accused.
17. In the examination-in-chief itself, it is stated by PW.1 that, when the Investigating Officer enquired the accused that, he has received the bribe money from the complainant, at that time, accused gave an explanation stating that, by force the complainant had given the said money. By saying so, he removed the tainted money and handed over the same to the Investigating Officer. Thus, it is the defence of the accused that, though there was no demand made by him to pay the money, but the complainant by force has thrust the same in his hands and
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 created a story that the accused has demanded the bribe amount from the complainant. Even he speaks with regard to preparation of post-trap panchanama and seizure of material objects under the panchanama by the Investigating Officer. Thus, in line with the contents of the complaint and panchanama, PW.1 has given his evidence in his examination-in-chief.
18. Whereas in the cross-examination, he states that, in Survey No.69, he owned 2 acres 20 guntas of land and one Timmayya has got 1 acre 22 guntas. According to him, since the year 1995-1996, he was doing agricultural operations in the said landed property. He states that, there is no dispute in between himself and Timmayya regarding the landed properties. As per his evidence, on 13.01.2009, he gave an application for the purpose of survey of his land. He cannot say that, whether the accused was a private licenced surveyor or not. Further, according to him, he has not given his mobile number to the Investigating Officer, but he gave
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 the mobile number of the accused and he has not met the accused etc. But these suggestions were denied by him. According to his evidence, in the association called as Karnataka Brastachara Nirmoolana Sangha, there are in all 25 members. Once or twice in every month, they hold meetings. The complainant used to get the information regarding the proceedings of the meeting of the said association.
19. It has come in the evidence of PW.1 that, he knew the Government employees are taking bribe money. He has denied other suggestions that, he has identified such persons and took steps against them. Even he deposed that, he does not know whether the accused was a Government servant or not and even he pleaded ignorance that the accused was a licenced surveyor or not. He denied the suggestion that, falsely the accused has been implicated. Evidently the accused is not a Government servant and he is a licenced surveyor and he has no permanent salary as per the arguments of the
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 counsel for the respondent/accused. A severe and intensive cross-examination was directed to PW.1.
20. The learned Trial Court while appreciating the evidence of PW.1, has categorically observed that, the evidence spoken to by PW.1 do not inspire any confidence in the mind of the Court. According to the evidence of PW.1, accused has received and counted the currency notes by using both the hands and placed them in the left pocket of his shirt. Immediately PW.1 came out and gave a pre-determined signal. The Investigating Officer and his staff came to the first floor, where the complaint has showed the accused. Even the shadow witness also showed the accused as the person, who has received the bribe money etc. In the cross-examination, he has categorically stated about he being the member of the association, the fact of membership of PW.1 of the said association is not disputed. Even for the last seven years, as per his evidence, there is an association wherein he is working and none of the member of the said association
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 were successful in trapping the corrupt Government officials.
21. If the evidence of PW.1 is scrupulously perused, he has given quite inconsistent evidence with regard to conducting of trap on the accused and even it is not proved that there was demand and acceptance of bribe money by the accused. When such inconsistent evidence is spoken to by this witness, then it requires corroboration. When he is the member of the said association and when it is private affair of the complainant that, he has to survey his land and effect phodi, what was the necessity for him to use the letterhead of the said association, is not stated by him either in the complaint or in his evidence on oath. He being the member of the said association, was not able to trace any of the corrupt officials on which the raid was conducted and perhaps that might have been prompted the complainant to lodge a complaint by using the letterhead of the said association. If such evidence is
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 placed on record, his evidence as stated above really requires corroboration.
22. Now coming to the evidence of PW.2 and he is branded as a shadow witness, who accompanied the complainant at the time of conducting raid. No doubt, he speaks in line with the statement given before the police. But, in the cross-examination, he has given a clear go- bye. As per his evidence, only after taking the accused to custody, the Investigating Officer has taken his signatures on the documents. That means, he has not singed any of the acknowledgements issued by the witnesses. So also, he has signed the labels in the office of the surveyor. Even he did not sign any of such documents in the office of the Lokayukta. He had not dictated the contents of Ex.P6. In his cross-examination, he states that, at the instance of the defence counsel, he has taken out his statement recorded by the police under Section 161 of Cr.P.C. It has come in the evidence of PW.2 that, before entering the witness box, he has gone through his
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 statement given before the police just to refresh his memory. The said statement so given by PW.2 has been marked as Ex.D1. That means, this PW.2 appears to be tutored witness and who had seen the records before entering the witness box. Even he has prepared some notes as per Ex.D1. This itself shows that, this PW.2 is a planted witness by the prosecution so as to suit the purpose of the prosecution.
23. The prosecution has also examined PW.3, who is the Joint Director of Land Records. According to his evidence, on getting the information from the concerned authorities i.e., ADGP Lokayukta on 01.09.2010, along with the final report, he took step to suspend the accused and also asked him to surrender his licence to conduct the survey. To that effect, he has identified Ex.D2, which is the circular issued from his office. To the extent of keeping the accused under suspension and calling upon the accused to surrender his licence to survey the land, the evidence of PW.3 is to be accepted.
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24. Likewise, the prosecution has examined PW.4, who is the Deputy Director of Land Records. He too speaks with regard to suspending the licence of the accused temporarily on receipt of the letter from the Sub Inspector of Police. This fact is not denied by the defence. To that extent, the evidence of PW.4 is to be accepted.
25. PW.5 is the second pancha witness. He has identified the signature on pre-trap panchanama as per Ex.P2 so also entrustment mahazar as per Ex.P4 and also the explanation offered by the accused as per Ex.P7. He was not present when the trap was conducted. He has identified the tainted currency notes, which were described in Ex.P3. To the extent of he putting his signature on panchanama, his evidence is to be believed. So far as other facts are concerned, his evidence would not help the case of the prosecution.
26. PW.6 is none other than the Investigating Officer in this case. He has testified about receipt of the complaint as well as conducting pre-trap and post-trap
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 proceedings so also arresting the accused etc. He has filed the charge sheet after collecting necessary documents. In unequivocal terms, he admits that, Ex.P7 is the explanation offered by the accused. According to the said explanation, as the complainant has submitted an application to the Survey Department to survey his land and effect phodi, it was the complainant, who has forcibly thrust of Rs.4,000/- in the hands of the accused. The accused has not demanded any money from the complainant. That means, when the raid was conducted, the accused had given an explanation stating that, he never received any bribe money from the complainant. Probably, the accused has given proper explanation, but the Investigating Officer has not believed the said story. In view of the evidence of PW.1 and PW.2, who were eyewitnesses to the incident so also in view of the contradictions and omissions appearing in the evidence of the prosecution, it can never be stated that, there was proper raid being conducted by the Investigating Officer based upon the complaint.
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27. It is settled principle of law that, if such a complaint is received by the Investigating Officer, it is his bounden duty to investigate and ascertain the truth about demand and then conduct trap on the accused. But, in this case, the evidence of PW.6 is very silent about conducting of any investigation about truthness of the complaint filed by the complainant. PW.6 just received the complaint and asked the complainant and other witnesses to come on the following day. He has prepared pre-trap panchanama and asked the complainant and shadow witness to go to the office of the accused. After giving signal by the complainant, he went inside the office of the accused along with his staff and conducted trap on the accused. Hence, this itself goes to show that, in a mechanical manner, basing the allegation of demand of bribe money by the accused, without ascertaining the truthness of the complaint, PW.6 has hurriedly conducted trap on the accused. The contents of Ex.P7 clearly shows that, it was the complainant, who has thrust Rs.4,000/- in the hands of the accused, which was tainted with
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 phenolphthalein powder. The shadow witness has not supported the case of the prosecution.
28. As rightly observed by the learned Trial Court that, when PW.2 - shadow witness entered the witness box, he was tutored. He has been given copy of his own statement recorded under Section 161 of Cr.P.C. and in verbatim, he has stated before the Court. That means, he has gone through the records and thereafter, he has given evidence before the Court. The learned Trial Court has taken into consideration all these aspects. It is settled principle of law that, when the accused has given plausible explanation that, the tainted notes were forcibly entrusted in his hands by the complainant, it is held in the catena of judgments of the Hon'ble Apex Court and this Court that "mere proof of recovery of bribe from the accused is not sufficient to prove the offence." The said principle is stated by the Hon'ble Apex Court in the case of Banarsi Dass v. State of Haryana reported in AIR 2010 SC
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 1589. The said judgment of the Hon'ble Apex Court has been referred to by the learned Trial Court.
29. No doubt, under the provisions of the Indian Evidence Act, the witnesses may be provided an opportunity to refresh their memory. Evidently, PW.2 is not the Investigating Officer or any expert witness and he is a pancha. Therefore, as held in various judgments that the witnesses refreshing their memory by reading the records before giving evidence in the Court is definitely prohibited under Section 162 of Cr.P.C. So, in the light of the said provision, the statutory presumption is very much available in favour of the accused. Therefore, in view of the considered opinion of this Court, though Section 20 of the P.C.Act speaks with regard to the presumption in favour of the prosecution agency, but insofar as Section 7 of the P.C.Act is concerned, it is settled position of law that, demand of illegal gratification is a sine qua non to constitute the said offence and mere recovery of the currency notes cannot constitute the offence punishable
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 under Section 7 of the P.C.Act unless it is proved beyond all reasonable doubts that, the accused has voluntarily accepted the money knowing it to be a bribe. The above position has been laid down in several judgments of the Hon'ble Apex Court. This is also laid down by the Hon'ble Apex Court in the case of B. Jayaraj vs. State of Andhra Pradesh reported in (2014) 13 SCC 55.
30. In the present case, as rightly observed by the learned Trial Court that, there is no proof regarding demand of bribe amount by the accused and so also there was no acceptance of the same. As per the explanation offered by the accused vide Ex.P7, it was the complainant, who has forcibly thrust the amount in the hands of the accused. Even it has come in the evidence that, there was pre-determined signal etc., but that will not go to the root of the case of the prosecution to prove that, there was demand and acceptance of the bribe amount by the accused.
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31. The Hon'ble Apex Court in the case of C.M.Girish Babu vs. CBI Cochin, High Court of Kerala reported in (2009) 3 SCC 779, has held that, "it is well settled that the presumption to be drawn under Section 20 of the P.C.Act is not inviolable one." The accused has been charged with an offence to rebut it either through the cross-examination of the witnesses stated as against him or by adducing reliable evidence to that effect.
32. It is equally well settled that, the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the P.C.Act is not akin to that of the burden placed on the prosecution to prove the case beyond reasonable doubt. If this principle is applied to the case on hand, here is a case that, Ex.P7 was offered at an earliest point of time when the trap was conducted. It was the complainant, who has thrust the said amount in the hands of the accused. The complainant had made use of his own letterhead of union so as to file a complaint. There is no explanation to that effect. That
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 means, since it is not established that the accused has possessed bribe amount, it is for the prosecution to explain that, how the accused had received the said money. The prosecution has failed to establish the said fact through any of the witnesses. That means, it cannot be presumed that the accused has accepted the bribe amount. The accused is a private licenced surveyor and is not a public servant. Therefore, as the accused in this case has offered explanation as per Ex.P7, the presumption which is available under Section 20 of the P.C.Act to show his innocence is proved by him by adducing evidence and cross-examining the witnesses. PW.2 is a tutored witness. On the other hand, though the Investigating Officer states about receipt of the bribe amount from the complainant, but the evidence so spoken by PW.1 and PW.2 is quite contrary with each other. So, as rightly pointed out by the learned counsel for the respondent/accused, as the accused has given the explanation as per Ex.P7, it can never be stated that, the prosecution is able to establish the guilt of the accused beyond all reasonable doubts.
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 That means the consensus in between the accused and the complainant with regard to acceptance of the bribe amount, as rightly observed by the Trial Court is not proved and established with legal and acceptable evidence. Even the learned counsel for the respondent/accused submits that, the accused has been falsely implicated so as to harass him. In view of the evidence brought on record, as the complainant and shadow witness have not supported the case of the prosecution and PW.2's evidence is tutored one, such evidence cannot be accepted. As rightly observed by the Trial Court that, the evidence so placed on record by the prosecution suffers from material particulars and there are certain contradictions and omissions and based upon the self serving testimony of PW.1, it cannot be stated that, the prosecution is able to prove the guilt of the accused. It can be stated that, when in a judgment challenging the acquittal, even the appellate Court must be very slow in interfering into the same.
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33. Even on re-appreciation of the evidence placed on record by the prosecution, one cannot come to a different conclusion than the conclusion arrived at by the Trial Court. I do not find any factual or legal error committed by the Trial Court in acquitting the accused. Therefore, the accused in this case is entitled for acquittal and accordingly, he has been acquitted by the Trial Court. Hence, this appeal lacks merit and is liable to be dismissed.
34. Therefore, the aforesaid point for consideration is answered against the complainant and in favour of the accused. Resultantly, I pass the following:
ORDER
a) The appeal is dismissed.
b) The impugned judgment of acquittal passed by the learned Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru dated
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NC: 2024:KHC:33979 CRL.A No. 1033 of 2013 06.11.2012 in Special Case No.190/2011, is hereby confirmed.
c) The bail bonds executed by the accused, if any, are hereby cancelled.
d) The accused is set at liberty.
e) Send back the Trial Court records along with a copy of this judgment forthwith.
SD/-
(RAMACHANDRA D. HUDDAR) JUDGE SRT List No.: 19 Sl No.: 4