Karnataka High Court
Shanthamalleshappa vs The State By Lokayuktha Police on 9 May, 2024
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CRL.A.325/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
CRIMINAL APPEAL NO.325 OF 2012
BETWEEN:
SHANTHAMALLESHAPPA
S/O. LATE B.C. NAGAPPA
AGED ABOUT 49 YEARS
ASSISTANT DIRECTOR OF SERICULTURE
NO.143/G, 12TH MAIN, 13TH CROSS
SARASVATHIPURAM
MYSURU.
APPELLANT
(BY SRI C.H. JADHAV, SENIOR ADVOCATE, ALONG WITH
SRI L. SRINIVASABABU, ADVOCATE)
AND:
THE STATE BY LOKAYUKTHA POLICE
MYSURU.
...RESPONDENT
(BY SRI B.S. PRASAD, SPECIAL PUBLIC PROSECUTOR)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED 13-3-2012 PASSED
BY THE III ADDITIONAL SESSIONS AND SPECIAL JUDGE, MYSURU,
IN SPECIAL CASE NO.81 OF 2010 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 7 AND 13(1)(d) READ WITH SECTION13(2) OF THE P.C.
ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 22-4-2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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CRL.A.325/2012
JUDGMENT
The appellant/accused has preferred this appeal under Section 374(2) of the Code of Criminal Procedure Code, 1973 (for short 'Cr.P.C.') to set aside the judgment of conviction and order on sentence dated 13-3-2012 passed by the III Additional Sessions and Special Judge, Mysuru (for short 'Special Court'), in Special Case No.81 of 2010, wherein he has been convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C.Act'). The appellant also prayed to acquit him of the alleged charges.
2. For the sake of convenience, the parties are referred to as per their rankings before the Special Court. The appellant is the accused and the respondent-State is the complainant.
3. The brief facts of the prosecution case are that Sri Basavaraju N. (PW3/complainant) was working as Sericulture Assistant and the accused was working as Assistant Director of Sericulture at Sericulture Farm, -3- CRL.A.325/2012 Department of Sericulture, Nanjangud. During the year 2008, PW3 was appointed in Excise Department and he was relieved from his duties from Sericulture Department. After revision of salary under the Fifth Pay Commission, Rs.45,881/- towards arrears of salary and Rs.11,300/- towards surrender leave encashment was due to him. Hence, on 14-8-2008, PW3 went to Sericulture Farm, met the accused and requested him to pass the bill in respect of arrears of salary and surrender leave encashment, at that time, the accused demanded and accepted a sum of Rs.3,000/- as bribe in order to pass the bill. Again on 21-8-2008, PW3 met the accused and requested him to pass the bill, at that time, the accused further demanded Rs.2,000/- as arrears of salary was more and asked him to pay the amount on 22-8-2008. Therefore, PW3 approached Lokayukta Police Station, Mysuru, and lodged a complaint against the accused as per Ex.P20. Hence, Lokayukta Police registered a case in Crime No.11 of 2008 against the accused for the offence punishable under Section 7 of the P.C. Act. On the same day, PW9/Investigating Officer secured two panchas -4- CRL.A.325/2012 (PWs.1 and 2), drew entrustment mahazar as per Ex.P2, explained the importance of entrustment mahazar to the witnesses, and thereafter proceeded to the Office of the accused, but the accused did not turn up to the Office though they waited till 5:30 p.m. On 23-8-2008, PWs.1 to 3 and 9 again went to the Office of the accused and the accused came to the Office at 1:00 p.m. After meeting the accused, PWs.1 and 3 came outside and gave signal to PW9 and informed that the accused demanded the amount and asked him to keep the amount under the writing pad of his table. Later, PW3 took PW9 inside the chamber of the accused and shown him the bribe amount, PW9 took the accused into custody, seized a sum of Rs.2,000/- and other relevant documents under seizure mahazar as per Ex.P4.
4. The Investigating Officer recorded the statement of the witnesses, collected service particulars of the accused, obtained sanction, sent seized articles to the Forensic Science Laboratory and after completion of investigation, filed the charge-sheet against the accused for the aforesaid offences.
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5. After filing of the charge-sheet, the Special Court took cognizance of the offences under Section 190(1)(b) of Cr.P.C. and after hearing the parties on both sides, framed the charges against the accused for the aforesaid offences and read over the same to the accused, the accused pleaded not guilty and claimed to be tried.
6. The prosecution in order to bring home the guilt of the accused examined in all nine witnesses as PWs.1 to 9, got marked thirty-eight documents as Exs.P1 to P38 and fourteen material objects as MOs.1 to 14 and closed its case.
7. The Special Court after closure of the evidence, recorded the statement of the accused under Section 313 of Cr.P.C. by explaining the incriminating material appearing in the prosecution evidence to the accused, he denied all the suggestions and the case of the accused was of total denial. The accused examined Sri Siddalingappa S. as DW1, Sri Satyanarayana as DW2 and himself as DW3 and got marked twenty documents as Exs.D1 to D20.
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8. The Special Court having heard both parties framed the following points for consideration:
"Whether the prosecution has proved beyond reasonable doubts that,
(i) Accused being a public servant working as Assistant Director in Sericulture Department at Sericulture Farm, Nanjangud had demanded the complainant on 14-8-2008 to pay Rs.3,000/- as illegal gratification other than the legal remuneration as a motive for sending the Service Register of the complainant to Excise Department and also to draw and disburse salary arrears and also surrender leave salary and had received that amount and further he had demanded additional amount of Rs.2,000/- from the complainant on 21-8-2008 and afterwards on 22-8-2008 he had demanded and accepted a sum of Rs.2,000/- from the complainant and thereby committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988? and -7- CRL.A.325/2012
(ii) Further accused being a public servant working as Assistant Director in Sericulture Department by misusing his official position as public servant by corrupt or illegal means had obtained pecuniary advantage to an extent of Rs.2,000/- from Sri Basavaraju as a motive or reward to show official favour to him and therefore guilty of committing criminal misconduct within the meaning of Sec.13(1)(d) of the Prevention of Corruption Act punishable under Sec.13(2) of the Prevention of Corruption Act?
9. Considering the evidence on record, the Special Court convicted the accused for the aforesaid offences. Aggrieved by the judgment of conviction and order on sentence passed by the Special Court, the appellant has preferred this appeal.
10. The Special Court records were called for and the same are placed before this Court.
11. Heard the arguments from both sides. Perused the material placed before this Court including -8- CRL.A.325/2012 the memorandum of appeal, impugned judgment and the Special Court records.
12. Sri C.H. Jadhav, learned Senior Counsel for the appellant/accused, has contended that the judgment of conviction and order on sentence passed by the Special Court is against the law, procedure, facts and probabilities of the case. The Special Court erred in believing uncorroborated testimonies of the prosecution witnesses. The Special Court committed an apparent error in overlooking major discrepancies that appeared in the evidence of the prosecution witnesses. It is contended that complainant-PW3 was not discharging his duties properly in the Office of Sericulture Department and in that regard, the accused had sent a report against PW3 and therefore, PW3 was having ill will against the accused and due to aforesaid animosity, PW3 managed the stage to show that the accused demanded a sum of Rs.2,000/- from him and thus, approached the Lokayukta Police and filed a false complaint against him and this fact was disclosed by the accused in his explanation furnished to the Investigating Officer on the day of the alleged trap. -9- CRL.A.325/2012 Though this aspect has been brought on record, the Special Court has not properly appreciated this aspect. It is contended that the seized amount was not recovered from the possession of the accused and on the other hand, it was seized under the writing pad kept on the table of the accused, that too, more amount than the amount, which was entrusted to PW3. Further, as per the evidence of PWs.1 and 3, they went inside the Office of the accused before his arrival to the Office and hence, taking advantage of the absence of the accused, PW3 might have kept the amount under the writing pad, which clearly establishes that there was no demand on the part of the accused. It is contended that Ex.P4-seizure mahazar was not submitted to the Special Court along with remand application, but it was submitted to the Court on 25-8-2008, which shows that the investigation was not conducted properly and it was conducted with malafide intention. Further, in order to prove the demand, the Investigating Officer provided a tape-recorder to PW3, but the conversation between the accused and PW3 were not clearly audible. Further, the Investigating Officer has not
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CRL.A.325/2012furnished the voice-recorder before the Court. Further, as per Ex.P5-explanation offered by the accused, he was not aware of the money kept under the writing pad of his table. It is contended that as per the evidence of PWs.1 to 3, as soon as PW3 left the chamber of the accused, the accused was counting money, but this aspect has not been mentioned in Ex.P4-seizure mahazar. Further, the Investigating Officer seized Rs.2,500/-, but the prosecution has not explained as to how Rs.500/- recovered excessively under the writing pad. It is contended that the writing pad has not been seized and the writing pad was made up of wood and therefore, one cannot see the articles kept underneath it. It is contended that there was Departmental Enquiry against PW3 and in the said Departmental Enquiry, the accused was a Presenting Officer and hence, in order to avoid the penalty to be imposed in the Departmental Enquiry, PW3 has lodged a false complaint against the accused. Further, PW3 did not take charge and he was unauthorisedly absent for forty days and thus, there was issue with regard to payment of arrears of salary and surrender leave
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CRL.A.325/2012encashment. It is contended that the accused had cleared the bills and credited arrears of salary to the account of PW3 two days prior to lodging of the complaint and there was no pending work. Hence, there is no question of demand and acceptance by the accused. Mere recovery of amount in the absence of demand has no relevance in the eye of the law. Hence, on all these grounds, he prayed to set aside the judgment of conviction and order on sentence and to acquit him the accused of the charges leveled against him.
13. Per contra, Sri B.S. Prasad, learned Special Public Prosecutor for the respondent-Lokayukta, has contended that from the evidence of PWs.1 to 3 and 9, it has been clearly proved that on 23-8-2008, the appellant/accused demanded and accepted the bribe of Rs.2,000/- to process arrears of salary, surrender leave encashment and return of service records. Further, these witnesses have clearly stated about drawing of the entrustment mahazar and seizure of MOs.1 to 14 in their presence by the Investigating Officer. The FSL report-Ex.P31 stands corroborated with the oral testimonies of aforesaid
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CRL.A.325/2012witnesses. The acceptance of illegal gratification whether preceded by a demand or not would be covered by Section 7 of the P.C. Act. The acceptance of illegal gratification is in pursuance of demand by the accused and thus, it falls under Section 13(1)(d) of the P.C. Act. The prosecution has been able to prove that the alleged act against the accused of demanding and accepting illegal gratification of Rs.2,000/- constitute the offences punishable under Sections 7 and 13(1)(d) of the P.C. Act. The Special Court based upon the oral and documentary evidence on record has rightly convicted the accused and as such, there are no grounds to interfere with the same. Thus, he prayed to dismiss the appeal.
14. After hearing the learned counsel from both sides, the points that arise for Court's consideration in this appeal are:
i. Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant, working as Assistant Director in Sericulture Department, at Sericulture Farm, Nanjangud, on 14-8-2008
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CRL.A.325/2012had demanded PW3/complainant to pay Rs.3,000/- as illegal gratification and accepted it and again on 23-8-2008, the accused further demanded and accepted Rs.2,000/- from PW3 to clear his bills in respect of arrears of salary, surrender leave encashment and return of service records and thereby, has committed the offence punishable under Section 7 of the P.C. Act? ii. Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant, working as Assistant Director in Sericulture Department, misused his official position by corrupt or illegal means obtained pecuniary advantage to an extent of Rs.2,000/- from PW3/complainant as a motive or reward to show official favour to him and thereby, has committed the offence punishable under Section 13(1)(d) of the P.C. Act punishable under Section 13(2) of the P.C. Act?
iii. Whether the judgment of conviction and order on sentence passed by the Special Court warrants any interference at the hands of this Court?
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CRL.A.325/2012
15. In the instant case, the prosecution has made allegations that the accused, being a public servant, working as Assistant Director in Sericulture Department, misused his official position by corrupt or illegal means obtained pecuniary advantage to an extent of Rs.2,000/- from PW3/complainant as a motive or reward to show official favour to him. Hence, to attract the offence punishable under Section 7 of the P.C. Act, the prosecution has to establish that the accused voluntarily demanded and accepted the bribe amount.
16. Section 7 of the P.C. Act reads as under:
"7. [Offence relating to public servant being bribed. [Substituted by Act No.16 of 2018, dated 26.7.2018.]
- Any public servant who,-
(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for
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the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
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CRL.A.325/2012
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
17. In view of the above proposition of law, facts and circumstances of the case, let me analyse the evidence.
18. In order to prove the demand and acceptance, the prosecution examined:
a. PW3-Basavaraju N., complainant, who has stated that he is presently working as Excise Guard in Excise Department and during the year 2007-2008, he was working as Assistant and the accused was working as Assistant Director in Sericulture Department, Nanjangud. He has further stated that after he was appointed in Excise Department, he had been to the Office of Sericulture Department and requested the accused to draw and disburse the arrears of salary due to him and also to send his service records to Excise Department. Even though he visited the Office several times and requested the accused to clear arrears of salary and to send the service records to Excise Department, the accused did not heed his
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request. He has further stated that on 14-8-2008, when he met the accused and enquired about the arrears of salary and also about sending his service records, the accused demanded him to pay Rs.3,000/- to do the work and at that time, he gave Rs.3,000/- to the accused and thus, the accused promised him that he would clear the bills and send the service records, however, he did not do; on 21-8-2008, he again went to the Office and requested the accused to draw the arrears of salary and at that time, the accused asked him to pay additional sum of Rs.2,000/- as bribe stating that the amount which is due to him as arrears of salary is huge amount and he asked him to pay that amount on the next day morning. Hence, he went to Lokayukta Police Station on 22-8-2008 and gave a complaint as per Ex.P20 and handed over Rs.2,000/- to Lokayukta Police Officer; the Police Officer secured two panchas, i.e. PW1/Ramanna and PW2/Dharmaraju M., from the Office of Commercial Tax, Mysuru, and the complaint given by him was given to them to read and later, the Police Officer smeared phenolphthalein powder on the amount with the help of his sub-ordinates and gave
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that amount to PW2 with instructions to note down the serial numbers and denominations of the currency notes and accordingly, serial numbers and denominations of the currency notes were noted down by PW2; he kept the amount in his shirt pocket and the Police Officer instructed him to handover the amount to the accused, if he demands for money and later, when the hands of PW1 were dipped in sodium carbonate solution, the colour of the solution turned to pink and the same was seized; the Police Officer prepared entrustment mahazar as per Ex.P2 regarding the procedure conducted in Lokayukta Police Station; the Police Officer gave a tape recorder to him with instructions to record the conversation between him and the accused; he along with the witnesses and the Police Officer and his staff went to Nanjangud in the official vehicle and the vehicle was stopped near Sericulture Farm and the Police Officer sent him and PW2 went inside the Office; when he and PW2 went and enquired about the accused, the accused was not in the Office and hence, they waited for him till 5:30 p.m., but the accused did not come to the Office and therefore, they came back to
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Lokayukta Police Station, Mysuru; the amount which was kept in his shirt pocket and also the tape recorder were taken out and kept in the almirah and a mahazar was prepared to that effect; the Police Officer asked him and the witnesses to come on the next day morning, i.e. on 23-8-2008.
On 23-8-2008 at 9:15 a.m., he visited Lokayukta Police Station and PWs.1 and 2 were also present and the amount and the tape recorder which were kept in the almirah were taken out and given to him and again, all of them went to Nanjangud in the official vehicle and the vehicle was stopped near Sericulture Farm and the Police Officer sent him and PW2 inside the Office of the accused; when he and PW2 went inside the Office, the accused was not in his chamber and they waited for him till 1:10 p.m. After arrival of the accused, he asked for clearance of the bills, at that time, the accused questioned him about the amount of Rs.2,000/-. Hence, he took out the amount from his shirt pocket and offered the amount to the accused, by that time, PW5/B.M. Lingappa came to the chamber along with a file and the accused told him to
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keep the amount under the writing pad on his table and accordingly, he kept the amount under the writing pad; after departure of PW5, the accused informed him that he would finish his work and later, he and PW2 came out of the chamber of the accused and when he looked back, he noticed that the accused had taken the amount kept under the writing pad and was counting the same. Thus, PWs.2 and 3 after coming out of the chamber gave signal to the Police Officer about handing over the money to the accused and thus, the Police Officer went to the chamber of the accused and questioned the accused about the amount and the accused informed that the said amount is kept under the writing pad of his table, later the amount was taken out and the serial numbers and denominations of the currency notes were compared with the serial numbers and denominations noted down in Lokayukta Police Station and PWs.1 and 2 informed that the serial numbers were tallying with each other and the said amount was seized. It is his further evidence that the Police Officer prepared sodium carbonate solution and the hands of the accused were dipped in the solution
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separately and the colour of the solution turned to pink and the said solution was also seized in a separate bottle; when the Police Officer questioned the accused about the amount, the accused gave a written explanation stating that he was not aware of the amount kept under the writing pad; he handed over the tape recorder given to him and when the tape recorder was played, the conversation recorded in the tape recorder was not properly audible; when the amount was seized under the writing pad, they found additional sum of Rs.500/- currency note and the Police Officer questioned about the same and at that time, PW7/Fameeda Nusrat, who was working in that Office, informed that she had given that amount to the accused for sanction of Provident Fund Advances and the said amount was also seized.
PW3 was subjected to cross-examination. In his cross-examination, he admits that as soon as the accused demanded the amount, PW5 entered the chamber of the accused, hence, the accused instructed him to keep the amount under the writing pad on his table. Soon after departure of PW5, the accused took out the amount and
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counted the currency notes. It shows that there are contradictions in the testimonies of PWs.2 and 3 as to the amount kept under the writing pad, whether in the presence of PW5 or after departure of PW5. Further, he admits that the Investigating Officer handed over voice recorder to him with a direction to record while interacting with the accused, but voice recorded by him was not audible. He further admits that the Police have collected a sum of Rs.2,000/- along with Rs.500/- currency notes under the writing pad. According to him, the Police enquired PW7 and she said that she paid a sum of Rs.500/- as bribe to the accused in order to clear her Provident Fund Advances. But, PW7 denied this aspect. He further admits that he signed on Ex.P4-seizure mahazar on 25-8-2008, which was drawn on 23-8-2008. It shows that on the date of trap, he has not signed on the said document. He further admits that earlier, he was working in the Office of Sericulture Department, Nanjangud, and thereafter, he has been appointed as Excise Guard in Excise Department and in this regard, he submitted an application to the Deputy Commissioner, Mysuru, to merge
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his previous service, accordingly, the accused issued show-cause notice to him and called for his explanation. He further admits that Departmental Enquiry was held against him in respect of sexual harassment made against his colleague. He further admits that he was not attending the Office on time and he was not properly doing his work. In that regard, his higher authority had issued a memo. Further, he was unauthorisedly absent for forty days and it was entered in the attendance register maintained in the Office of Sericulture Department. He further admits that the accused issued six memos to him vide Exs.D6 to D18 while he was working in the Office. He further admitted that on 23-3-2007, he was not accorded any permission by the accused to take in-charge post at Mysuru. He further admits that his arrears of salary bill was cleared on 19-8-2008 and the amount was credited to his bank account on 21-8-2008. He further admits that he enquired with PW5 as to clearance of bill and service records, however, PW5 informed him that in order to clear revised pay-scale in terms of Fifth Pay Commission, service register was required in the Office of Sericulture
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Department. More importantly, the service records was not at all required to him, as no order was issued to him by Excise Department to join for duty from 23-5-2008. Further, service register is normally transmitted from parent department to another department where the employee gets posted.
It is pertinent to note that PW3 had insisted the accused to send his service records to Excise Department. In fact, PW3 had not joined the Office of Excise Department till 24-9-2008. Hence, the question of sending the service records of PW3 from parent department (Office of Sericulture Department, Nanjangud) to Excise Department would not arise at all.
b. In order to corroborate the oral testimony of PW3/complainant, PW1-Ramanna and PW2-Dharmaraju M. have been examined. They have stated that on 22-8-2008, as per the directions of their higher authorities, they appeared before PW9/Lokayukta Police Inspector/Investigating Officer, at that time, PW3 was in the Station, who had lodged a complaint against his higher
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officer alleging that he was demanding bribe to draw the arrears of salary due to him and PWs.1 and 2 had gone through the contents of the complaint lodged by PW3. They have further stated that PW9 conducted entrustment mahazar as per Ex.P2 and its importance. They have further stated that on the same day, they went to the Office of the accused at Nanjangud, but due to non- availability of the accused, they came back to Mysuru and on 23-8-2008, again they went to the Office of the accused at Nanjangud. PW2, shadow witness, has specifically stated that he and the complainant, went inside the Office of the accused, the accused was sitting in the chair and PW3 wished him and asked the accused about his arrears of salary and also asked him to send service records, at that time, the accused asked PW3 as to whether he has brought Rs.2,000/- as said by him earlier. It is further evidence of PW2 that when the accused demanded money, another official of the same Office entered the chamber of the accused and after couple of minutes, said official left the chamber of the accused and thereafter, PW3 took out the bribe amount from his shirt
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pocket and offered the amount to the accused and in turn, the accused asked PW3 to keep the amount beneath the writing pad of his table, thus, PW3 kept the amount and later, the accused informed the complainant that he would finish his work. It is further evidence of PW2 that he and PW3 came out of the chamber of the accused, at that time, the accused took the amount from the place where it was kept and was counting the same in his hands. Therefore, PW3 gave signal to PW9/Investigating Officer by wiping his head with his hand as instructed by him. Hence, PW9 and his sub-staff, PWs.1 and 2, entered the chamber of the accused, enquired the accused, seized the amount, drew seizure mahazar as per Ex.P4. PWs.1 and 2 further stated that PW9 seized the sum of Rs.500/- along with Rs.2,000/- during the trap proceedings. PW9 also seized the records pertaining to arrears of salary of PW3 under the mahazar.
In the cross-examination, PW1 admits that permission was not accorded in writing to participate in trap proceedings and there is no Office order in this regard. PW1 has not obtained permission from his higher
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authority to accompany Lokayukta Police on 23-8-2008. He admits that there is half-shutter spring door installed to the door of the accused and hence, once cannot see the accused from outside. He further admits that he collected the amount under the writing pad and handed over to PW9/Investigating Officer. He also handed over a sum of Rs.500/- and a note book to PW9.
In the cross-examination, PW2 has stated that while the accused was demanding the bribe amount, one Assistant of the same Department entered the chamber of the accused. Hence, PW3 did not handover the amount to the accused and later, after his return, PW3 took out tainted amount from his pocket and tried to handover the same to the accused, but the accused instructed to keep the same under the writing pad on his table. Accordingly, PW3 kept the tainted amount under the writing pad on the table of the accused.
c. PW4-D. Puttaswamy has stated that during the relevant period, he was working as Superintendent in the Office of the Assistant Director of Sericulture Department,
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Nanjangud. On 23-8-2008, he was present when the Lokayukta Police had come to the chamber of the accused and when the Police verified under the writing pad on the table of the accused, they found the amount and the Police seized the amount. He further stated that as per the instructions of PW9, he handed over the documents belonging to PW3 as per Exs.P6 to P8.
d. PW5-B.M. Lingappa has stated that during the year 2008, he was working as Second Division Assistant in the Office of Sericulture Department, Nanjangud. He has stated that when the Lokayukta Police came, he was also present in the Office and on that day, the Police Officer called him to the chamber of the accused and later, the Police took photographs. Apart from his evidence, he does not know anything about the case and hence, he has been treated as hostile witness and was subjected to cross- examination. Even in the cross-examination, he has not stated anything about the incident.
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e. PW6-Devika, Under Secretary to the Government, has stated about according sanction to prosecute the case against the accused.
f. PW7-Fameeda Nusrat, an employee of Sericulture Department, has stated that she was not present when the Lokayukta Police trapped the accused and on the date of trap, she had not met the accused and she was not having any work with the accused. Hence, she was treated as hostile witness and subjected to cross-examination. Even in the cross-examination, she denied the suggestions that she had given a sum of Rs.500/- as bribe to the accused for sanction of Provident Fund Advances.
g. PW8-A.V. Subramanya has stated that on the request of the Lokayukta Police, he visited the Office of the accused and drew sketch as per Ex.P26.
h. PW9-D. Jayaram, Inspector of Police, Lokayukta Police Station, Mysuru, has stated that he was working as Police Inspector in Lokayukta Police Station, Mysuru, during the year 2008. On 22-8-2008 at about 10:45 a.m., when he was in the Station, PW3 appeared in the Police
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Station and gave a written complaint as per Ex.P20 stating that the Assistant Director of Sericulture at Sericulture Department, Nanjangud, is demanding bribe amount to draw and disburse arrears of salary and also to send his service records to Excise Department. Hence, he received the complaint and registered a case and sent F.I.R. to the Court; he secured PWs.1 and 2 as panch witnesses and introduced the complainant to those witnesses and also gave the complaint given by PW3 to the witnesses to go through its contents and after reading the complaint, they agreed to act as panch witnesses; the complainant gave Rs.2,000/- to him and he handed over that amount to PWs.1 and 2 with instructions to note down the serial numbers and denominations of the currency notes and accordingly, PWs.1 and 2 noted down the serial numbers and denominations of the currency notes as per Ex.P1; later with the help of his sub-ordinates, phenolphthalein powder was smeared on the currency notes and again the amount was given to PW1 with instructions to verify the amount and to keep the amount in the shirt pocket of PW3 and accordingly, PW1 kept the
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amount in the shirt pocket of PW3; he instructed the complainant that the said amount should be given to the accused, if he again demands for money and also gave a tape recorder to the complainant with instructions to switch on the tape recorder when he goes and meet the accused; the sodium carbonate solution was prepared and the hands of PW1 were dipped in the solution and the colour of the solution turned to pink and the said solution was seized and the remaining phenolphthalein powder was also seized in a pocket cover. In this regard, entrustment mahazar was prepared as per Ex.P2 about the procedure conducted in the Lokayukta Station and in this regard, Exs.P9 to P13-photographs were taken; he instructed PW2 to be with the complainant when the complainant visits the accused and to observe the happenings.
PW9 has further stated that he along with the complainant, panch witnesses and his staff went to Nanjangud in the department vehicle and the vehicle was stopped near the Office of the Director of Sericulture. Though PWs.2 and 3 along with the complainant were waiting for the accused, the accused did not turn up on
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that day. Hence, they came back to the Station and the amount and the tape recorder were taken back from the complainant and were kept in almirah and a mahazar was prepared as per Ex.P3 to that effect; further, the complainant and the witnesses were instructed to come on the next day morning.
It is his further evidence that on 23-8-2008, the complainant and PWs.1 and 2 again came to the Police Station in the morning and the amount and the tape recorder which were kept in the almirah were taken out and entrusted to the complainant. Later, he along with the complainant, panch witnesses and his staff went to Nanjangud in departmental vehicle and the vehicle was parked near Sericulture Farm and PWs.2 and 3 were sent inside the Office; after some time, PWs.2 and 3 came back and informed him that the accused is yet to come to the Office and therefore, they waited for the accused till 1:00 p.m. and later, the complainant informed him that the accused came to the Office and therefore, PWs.2 and 3 went inside the Office at 1:10 p.m.; at about 1:45 p.m., PWs.2 and 3 came out of the Office of the accused and the
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complainant signaled about handing over the bribe amount to the accused and immediately, he along with PW1 and his staff went near the complainant and enquired him. The complainant informed him that the accused received the bribe amount from him and the amount is kept under the writing pad on the table of the accused and also took him to the chamber of the accused and showed him; he informed the accused about the complaint given by PW3, he was taken to custody, sodium carbonate solution was prepared and the hands of the accused were separately dipped in sodium carbonate solution and colour of solution turned to pink and the same was seized; when he questioned the accused about the amount received from the complainant, the accused informed him that the amount is kept under the writing pad on his table and later, the amount was seized and he instructed PWs.1 and 2 to compare the serial numbers and denominations of the currency notes which were found under the writing pad with the serial numbers and denominations of the currency notes noted down in Lokayukta Police Station and the
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serial numbers and denominations were tallying with each other.
It is his further evidence that when the writing pad was removed, there was a book and also additional sum Rs.500/- under the writing pad and when he made enquiry, PW7, who was an employee in the Office, stated before him that she had given the currency note of Rs.500/- to the accused on that day for sanctioning Provident Fund Advances and therefore, he seized the said amount also; further, he seized the book which was found under the writing pad and also the sample of distilled water used for preparing the solution and sodium carbonate powder. When he asked the accused to give his explanation about receiving the amount, the accused gave written explanation as per Ex.P5 and when he enquired PWs.2 and 3 about explanation of the accused, they denied the explanation offered by the accused and informed that the accused demanded for money and therefore, the bribe amount was given to him. He has taken back the tape recorder which was given to the complainant and played it before the witnesses, however,
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CRL.A.325/2012the conversation recorded in the tape recorder was not properly audible, however, the cassette was also seized. In this regard, the photographs were also taken when the procedure was conducted in the chamber of the accused and a seizure mahazar was prepared as per Ex.P4; thereafter, he conducted further investigation and recorded the statement of witnesses and after completion of investigation, he filed the charge-sheet.
PW9 was cross-examined by the learned counsel for the accused. In the cross-examination, he admits that prior to 22-8-2008, he never visited PW3/complainant. At the time of lodging complaint, PW3 was not working in Sericulture Department, Nanjangud. He further admits that he does not know from which chemical unit the phenolphthalein and sodium carbonate solutions are prepared, but he knows that if phenolphthalein is mixed with sodium carbonate solutions, the same turns to pink colour. He submitted F.I.R. to the Court before drafting entrustment mahazar vide Ex.P2. He handed over micro voice recorder to PW3 and instructed him to record voice conversation and he ensured that micro voice recorder
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CRL.A.325/2012was in order and audible condition. He further admits that on 22-8-2008, himself and PWs.1 and 2/panch witnesses, returned to Mysuru as they could not find the accused. But he did not seek any permission from the higher authorities of PWs.1 and 2 to accompany him on 23-8-2008. On 23-8-2008, he handed over tainted amount, the note containing details of currency notes and micro voice recorder to PW3, but he did not prepare any mahazar to that effect. He further admits that the sodium carbonate solution stored in MO5-bottle was precipitate and the sodium carbonate solutions stored in MOs.3 and 4-bottles were not precipitate. In this regard, he pleads ignorance. He further admits that he did not examine Rs.500/- currency note as to whether the said currency note contained phenolphthalein powder or not. He did not secure any signatures of the colleagues of the accused. On 23-8-2008, he secured signatures of PWs.1 and 2 on seizure panchanama-Ex.P4. On the day of production of the accused before the Court, he had no impediment to submit entrustment mahazar and seizure mahazar along with remand application to the Court. He further admits that he
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CRL.A.325/2012secured the signature of PW3 on seizure mahazar on 25-8-2008, i.e., after two days of the incident. PW7 did not lodge any complaint against the accused alleging any bribe. Further, he did not make any request to PW4 to handover service records of PW3. PW9 specifically denied the suggestions that on 23-8-2008, the bill was cleared and the amount was credited to the account of PW3.
PW9 in his cross-examination dated 15-2-2012, after hearing voice recorder in the Court, clearly admits that initially PW3 wished the accused saying "Namaskara Sir"
and later, he enquired about his bill, in reply, the accused told him that his one bill was prepared three days ago. Thus, PW3 again enquired about his second bill, thus, the accused replied that, the former bill was also prepared yesterday and thus, told him to enquire PW5 and asked him to leave his chamber. Hence, PW3 replied him saying that "Okay Sir, I will return". From the above evidence of this witness, it is clear that there was no demand of bribe amount from the accused.
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19. In order to rebut the prosecution case, the accused got examined:
a. DW1-Siddalingappa S., Sericulture Inspector, Mysuru. In his evidence, he has stated that he knows PW3/complainant, who was working under him.
b. The accused also got examined DW2- Satyanarayana. In his evidence, he has stated that PW3/complainant was not attending his duty properly and, in that regard, the accused had got issued notice to PW3.
c. The accused-B.N. Shanthamalleshappa, Assistant Director, Sericulture Department, Mysuru, examined himself as DW3. He has stated that he affixed his signature on Ex.P4-seizure mahazar on 25-8-2008 in the Lokayukta Office, Mysuru, and not in the Office of Sericulture Department, Nanjangud.
20. In this case, it is to be noticed that PW3/complainant is a key witness. He was working as Assistant in the Office of Sericulture Department, Nanjangud. It is evident from the depositions of PWs.1 to 3 and 9 that they reached the Office of Sericulture
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CRL.A.325/2012Department, Nanjangud, on 22-8-2008 at 10:30 a.m. and at that point of time, the accused was not found in the Office and they waited for him till 5:30 p.m. Since the accused did not turn up, they came back to Mysuru from Nanjangud. On the following day, i.e. on 23-8-2008 at 10:30 a.m., PWs.1 to 3 and 9 reached Sericulture Department, Nanjangud, but the accused was not found in the Office and thus, they waited for him and the accused came to the Office at 1:10 p.m. and took his seat. PW3/complainant, in his deposition, has stated that when he met the accused along with PW2, the accused made a demand of Rs.2,000/-. He has further stated that in lieu of such demand by the accused and as per instructions of the accused, he kept the powder coated currency notes under the writing pad on the table of the accused. The official witnesses, i.e. Ramanna and Dharmaraju M., were examined as PWs.2 and 3 and they have stated that when they reached the Office of the accused, the accused was not in his seat. Therefore, they waited and the accused arrived to the Office at 1:10 p.m. PW3, in his deposition, has clearly stated that he met the accused earlier several
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CRL.A.325/2012times and again when he met on 23-8-2008 along with PW2, the accused demanded the bribe amount of Rs.2,000/- as illegal gratification.
21. As per the defence of the accused, PW3 was not regular in his work, he was coming late to the Office, he was not attending his duty properly, hence, several show- cause notices and memos were issued to him, a Departmental Enquiry was held against him and the accused was a Presenting Officer in the said Departmental Enquiry.
22. From the oral testimony of PW3, it is clear that they were ill feelings between the accused and PW3. It is also clear from the evidence that after handing over the currency notes, he and PW2 came out of the Office and signaled to PW9/Investigating Officer. From perusal of the evidence of PWs.1 to 3 and 9, the amount was seized under the writing pad kept on the table of the accused. PW4/Superintendent in the Office of Sericulture Department, Nanjangud, PW5/Second Division Assistant in the Office of Sericulture Department, Nanjangud, who is
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CRL.A.325/2012stated to have visited the chamber of the accused at the time of handing over of the bribe amount, and PW7/employee of the Sericulture Department, Nanjangud, who is stated to have handed over Rs.500/- to the accused, have not supported the case of the prosecution to any extent. There are contradictions in the testimonies of PWs.2 and 3 as to the bribe amount tendered by PW3 before the accused. Further, Ex.P4-seizure mahazar was drawn on 23-8-2008, but PW3 affixed his signature on 25-8-2008. It is also admitted fact that as on 23-8-2008, there was no bills pending with respect to PW3.
23. Further, PW9/Investigating Officer, after hearing micro voice recorder in open Court during his cross- examination dated 15-2-2012, has stated that, the moment PW3 visited the chamber of the accused and enquired about his two pending bills, the accused in categorical terms stated that his one bill was cleared about three days ago and second bill was cleared on previous day and thus, asked him to enquire with one Lingappa and also insisted PW3 to leave the chamber. In these conversations, the accused has not made any demand for
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CRL.A.325/2012bribe and there is no interaction between the accused and PW3 regarding demand of bribe amount. Further, in the said interaction, it is not revealed that PW3 handed over Rs.2,000/- as demanded by the accused. From the admission made by PW9, it clearly establishes that as on the date of the alleged trap, there was no bills pending with respect to PW3 and the accused has not demanded any bribe amount from PW3.
24. It is fairly well settled that mere recovery of tainted money divorced from circumstances under which such money is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.
25. The Hon'ble Supreme Court in the case of N. VIJAYAKUMAR v. STATE OF TAMIL NADU reported in AIR 2021 SUPREME COURT 766 at paragraph No.12 has held as under:
"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the
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case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 : (AIR 2009 SC 2022) and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : (2014 AIR SCW 2080). In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well-settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and
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mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] : (AIR 2011 SC 608) and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] : (AIR 2009 SC 2022 : 2009 AIR SCW 1693).
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P-
11) before LW9, and there is no other
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evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext.P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused.
We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
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CRL.A.325/2012
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High
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CRL.A.325/2012Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."
26. In this case, there is no proof of demand. Absence of proof of demand for illegal gratification and mere possession of, or recovery of currency notes is not sufficient to constitute the offences under Sections 7 and 13(1)(d) of the P.C. Act. Though demand is not proved, but the Special Court has wrongly raised presumption under Section 20 of the P.C. Act in the absence of proof of demand and acceptance of illegal gratification. Further, the complainant/PW3 prosecuted the accused with ill-motive as he was irregular in his work, several memos and show-cause notices were issued to him by the accused and in one of the
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CRL.A.325/2012Departmental Enquiry held against him, the accused was the Presenting Officer. Therefore, in order to avoid the penalty to be imposed in the Departmental Enquiry, PW3 has lodged this false complaint against the accused. The prosecution though not proved its case beyond reasonable doubt that the accused made demand and accepted bribe amount of Rs.2,000/- from PW3, however, the Special Court on uncorroborated testimony proceeded to convict the accused, which requires interference by this Court.
27. In view of the material contradictions as noticed above in the deposition of key witness and the fact that the prosecution failed to prove the demand, the benefit of doubt has to be extended in favour of the accused. Accordingly, I pass the following:
ORDER i. The appeal is allowed.
ii. The judgment of conviction and order on sentence dated 13-3-2012 passed by the III Additional Sessions and Special Judge, Mysuru, in Special Case
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No.81 of 2010, convicting the appellant/accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, is hereby set aside. iii. The accused is acquitted of the charges leveled against him and the bail bonds shall stand cancelled. iv. The Special Court is directed to refund the fine amount, if any, deposited by the accused. Registry is directed to return the Special Court record along with a copy of this judgment to the Special Court, forthwith.
Sd/-
JUDGE kvk