Karnataka High Court
The State Of Karnataka vs Nageshkumar S/O. Basappa Madivala on 9 November, 2022
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CRL.A No. 100062 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 09TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO. 100062 OF 2014
BETWEEN:
THE STATE OF KARNATAKA
BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH LOKAYUKTA POLICE,
KOPPAL.
...APPELLANT
(BY SRI G. I. GACHCHINAMATH, SPL.PP.)
AND:
NAGESHKUMAR S/O BASAPPA MADIVALA
AGE: 32 YEARS, OCC: VILLAGE ACCOUNTANT,
R/O: MADAPUR, TQ: KUSHTAGI,
DIST: KOPPAL.
...RESPONDENT
(BY SRI NEELENDRA D. GUNDE, ADVOCATE)
Digitally signed THIS CRIMINAL APPEAL IS FILED U/S 378 (1) AND 378 (3)
by VIJAYALAXMI
M BHAT OF CR.P.C., SEEKING TO GRANT A LEAVE TO APPEAL AGAINST
Location: HIGH
COURT OF
KARNATAKA,
THE JUDGMENT AND ORDER OF ACQUITTAL PASSED ON
DHARWAD
BENCH, 11.10.2013 BY LEARNED PRINCIPAL SESSION AND SPECIAL
DHARWAD.
JUDGE KOPPAL IN SPL.C.C. (P.C.) NO.26/2011, AGAINST THE
RESPONDENT/ ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 7, 13(1) (D) R/W 13(2) OF PREVENTION OF
CORRUPTION ACT, AND TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL OF THE TRIAL (COURT PASSED ON
11.10.2013 BY PRINCIPAL SESSIONS AND SPECIAL JUDGE
KOPPAL IN SPL.C.C.(P.C.) NO.26/11 BY ALLOWING THE PRESENT
APPEAL, AND TO PASS A JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE AGAINST THE RESPONDENT/ ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 7, 13(1) (D) R/W 13 (2)
OF PREVENTION OF CORRUPTION ACT, 1988.
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CRL.A No. 100062 of 2014
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.10.2022, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant being aggrieved by the judgment and order of acquittal dated 11.10.2013 in Spl.CC.(P.C) No.26/2011 passed by the learned Principal Sessions and Special Judge at Koppal.
2. The appellant was the complainant and the respondent was the accused in the Trial Court. For the sake of convenience, the rank of the parties henceforth will be considered as per the rankings in the Trial Court.
3. Briefly stated facts of the case are that, PW4- Rudrappa Sangappa Palled had three brothers, among them one Sri Mallappa died leaving behind Neelamma as the legal representative. On 09.04.2010, an application was filed before the Tahasildar Kushtagi to change the Khata in favour of Neelamma. The said application was transferred to Kudlur- Madapura, Village Accountant where the property is situated.
4. It is further stated that the said village accountant even after lapse of two years he did not start the change of mutation work. When PW.4 approached the village accountant, he demanded illegal gratification to pay a sum of Rs.5,000/-. -3- CRL.A No. 100062 of 2014 However, after negotiation, the village accountant has agreed to take Rs.3,500/-.
5. It is further submitted that, PW.4 was not interested to pay the illegal gratification and approached an Advocate namely, Sri Sanganagouda. The said Advocate has advised PW.4 to approach Lokayukta. As per the advice of the said Advocate, PW.4 on 06.07.2010 approached Lokayukta and informed about the demand made by the accused to the Lokayukta Police. The Lokayukta Police have instructed PW.4 to act according to their instructions. Accordingly, on 12.07.2010 PW.4 along with PW.1-shadow witness went to the office of the accused and enquired about the change of mutation. Then, the accused demanded Rs.3,500/-. Therefore, PW.4 gave the amount. After giving the amount, PW.4 signaled the Lokayukta Police. The Lokayukta Police rushed to the office of the accused and proceeded further in accordance with law. After drawing the seizure mahazar and after following the procedure, the Lokayukta Police have registered the case in Crime No.6/2010 for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (for short 'P.C. Act').
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6. The prosecution in order to prove the case, examined 14 witnesses, PW.1 to PW.14 and got marked Exs.P.1 to P.34 and identified the material objects MO.1 to MO.9.
7. The Trial Court after appreciating the oral and documentary evidence on record, acquitted the accused for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C. Act. The complainant-State being aggrieved by the judgment and order of acquittal passed by the trial Court preferred this appeal seeking to set aside the judgment and order of acquittal.
8. Heard Sri G.I.Gachchinamath, learned Special Public Prosecutor for the appellant and Sri Neelendra D.Gunde the learned counsel appearing for the respondent.
Submission of Sri G.I.Gachchinamath, learned Special Public Prosecutor appearing for the appellant
9. It is submitted that the judgment and order of acquittal passed by the trial Court is erroneous, illegal and contrary to the evidence on record. Therefore, the same is liable to be set aside.
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It is further submitted by the learned counsel for the appellant that the prosecution has examined 14 witnesses and got marked 34 documents. Though PW.4 has turned hostile, other witnesses like shadow witness-PW.1, panch witness-PW.2 and other official witnesses have supported the case of the prosecution and proved the case beyond its reasonable doubt. However, the Trial Court has failed to appreciate the evidence in a proper manner.
10. It is further submitted that in addition to the evidence of PW1, there are other documentary evidence and other witnesses who supported the prosecution case. The evidence of PW.9 who was working as Revenue Inspector of Hanumanala Circle has stated that he has identified the voice of the accused wherein the accused had demanded the illegal gratification from P.W.4. Such clinching evidence ought to have been considered by the trial Court. The Trial Court ought to have invoked the statutory presumption available under Section 20 of the P.C. Act. Therefore, the learned counsel for the appellant prays to allow the appeal.
-6-CRL.A No. 100062 of 2014 Submission of Sri Neelendra D.Gunde the learned counsel appearing for the respondent
11. Justifying the judgment and order of acquittal it is submitted that, the demand and acceptance of the illegal gratification has not been proved. PW.4 said to have recorded the transaction through voice recorder and also an eye-witness to the incident has not supported the case. Though PW.9 has identified the voice of the accused regarding the demand and acceptance when the Lokayukta Police have made him to listen the voice recorder, that itself is not sufficient to procure the conviction. The voice recorder may be a piece of evidence and it is corroborative evidence. Unless the evidence of the complainant supported the prosecution case regarding demand and acceptance of illegal gratification the conviction of the accused cannot be procured. It is further submitted that the Trial Court has rightly appreciated the evidence and acquitted the accused which may not be interfered with.
12. It is further submitted that the evidence of shadow witness-PW.1 and the evidence of panch witness-PW.2 though appears to be supported the prosecution case, their evidence cannot be considered independently in absence of support by the complainant. The official witnesses though supported the case of the prosecution they are regarded as interested -7- CRL.A No. 100062 of 2014 witness. Therefore, the learned counsel for the respondent prays to dismiss the appeal filed by the appellant.
13. After having given my anxious and thoughtful consideration to the rival submissions made by the learned counsel for both the parties and perused the documents, the points which arise for my consideration are:
1) Whether the judgment and order of acquittal passed by the trial Court is justified?
2) Whether the appellant/ complainant has made out a ground to interfere with the judgment and order of acquittal passed by the trial Court?
14. After having heard the submission made by the learned counsel for the parties, this Court being a First Appellate Court in order to re-analyze the facts and law of the case, it is relevant to refer the material witnesses and their evidence.
15. Before adverting to the other facts, it is relevant to refer the principles of, the appeal against acquittal. It is a settled principles of law, that the interference in an appeal against an acquittal recorded by the Trial Court should be rare and only under an exceptional circumstance. It is, however, well settled that, it is open to this Court to reappraise the -8- CRL.A No. 100062 of 2014 evidence and conclusions drawn by the Trial Court, but, only in a case when the judgment of the Trial Court is stated to be perverse.
16. As could be seen from the evidence of PW4, who is an eye-witness to the incident and he was supposed to depose about the illegal gratification said to have been given to the accused on demand made by the accused. The said illegal gratification was made by the accused to change the mutation in favour of PW.5. PW.5 is the sister-in-law of the complainant alleged to have applied for change of mutation. PW.7 is another brother of PW.4. PW.8 is the mother of the PW.4. All these witnesses have turned hostile and not supported the case. PW.1 being a shadow witness has supported the case, PW.2 another panch witness also supported the case of the prosecution. According to PW.1, a trap procedure was held in the office of the accused and the amount has also been seized in the office of the accused. PW.2 another panch witness has deposed that he was present at the time of drawing seizure- mahazar. PW.9-Somashekar who was working as the Revenue Inspector in the office, has identified the voice of the accused when the voice recorder was played by the Lokayukta Police to -9- CRL.A No. 100062 of 2014 ascertain the voice of the accused. The said voice recorder has been marked as Ex.P22.
17. Though the panch witness-PW2 and shadow witness-PW.1 have supported the case of the prosecution, their evidence cannot be equated as that of a complainant. In a case of Prevention of Corruption Act, prosecution has to establish that there is demand and acceptance made by the accused which is sine qua non to constitute an offences punishable under Sections 7 and 13(d) of the P.C. Act.
18. The effect of statements of PW4, PW5, PW6 and PW7 and their hostility towards the prosecution's case clearly indicates that the prosecution has failed to prove the demand and acceptance. In the absence of such demand and acceptance, a conviction cannot be procured against the accused. Therefore, the Trial Court has rightly appreciated the evidence and concluded that the prosecution has failed to prove the case beyond all reasonable doubt. Therefore, this Court declined to interfere with the judgment and order of acquittal passed by the Trial Court.
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CRL.A No. 100062 of 2014
19. In view of the observations made above, the points which arose for my consideration are answered as:
1) Point No.1 in the affirmative
2) Point No.2 in the negative
20. Hence, I proceed to pass the following:
ORDER
a) The appeal filed by the appellant stands dismissed.
b) The judgment and order of acquittal dated 11.10.2013 in Spl.CC.(P.C) No.26/2011 passed by the learned Principal Sessions and Special Judge at Koppal stands confirmed.
Sd/-
JUDGE SSP/Vmb