Karnataka High Court
Dr.Rajashekhar vs The State Of Karnataka on 6 April, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.2595/2013
BETWEEN:
DR. RAJASHEKHAR,
MEDICAL OFFICER,
PHC, TAMBRAHALLI,
HAGARIBOMMANAHALLI TQ,
DISTRICT: BELLARY
...APPELLANT
(BY SHRI C.H.JADHAV, SR.ADVOCATE FOR
SHRI N.D.GUNDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
POLICE INSPECTOR, KARNATAKA
LOKAYUKTA, HOSPET,
NOW REPRESENTED BY HCGP.
...RESPONDENT
(BY SRI. ANIL KALE, SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF Cr.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 22.03.2013
PASSED BY THE PRL. SESSIONS/SPECIAL JUDGE, BELLARY IN
SPL.CASE NO.22/2010 AND FURTHER THE ACCUSED/APPELLANT
BE ORDERED TO BE ACQUITTED.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal arises out of the judgment of conviction and order of sentence dated 22.03.2013 passed by Principal Sessions (Special) Judge, Bellary in Spl.Case No.22/2010 wherein, the accused was convicted for the offence punishable under Sections 7 r/w 13(2) and 13(1)(d) r/w 13(2) of Prevention of Corruption, Act, 1988 (for short hereinafter referred to as 'PC Act, 1988).
2. The appellant was the accused before trial court. He will be referred as such, in this appeal for convenience.
3. Brief case of the prosecution is that the appellant/accused was working as Medical Officer in Primary Health Centre, at Tambrahalli in Bellary district. Sri. V.N.Joshi
- complainant was working as Health Instructor under the accused in the Primary Health Centre. He was posted to Sidaginamola Primary Health Centre, at Bellary Taluk on O.O.D. It is further alleged that complainant has passed SSLC examination in Kannada language and on account of Government policy, an additional increment was sanctioned to the complainant. The accused was the drawing officer of 3 complainant and for the purpose of preparing bills regarding payment of arrears of salary in view of complainant's eligibility for an increment from 1972. It is the further case of the prosecution that the accused/appellant informed the complainant over phone that on preparing the arrears of his salary, a cheque for Rs.1,83,020/- was received from the Government. To handover the said cheque to the complainant, the accused demanded bribe of Rs.15,000/-. In this regard, the Lokayukta police after receipt of complaint dated 23.07.2008 lodged by PW.1/complainant, laid the trap. They first went to the hospital wherein accused asked PWs.1 and 2 to come to his house. Thereafter, PW.1/complainant along with the shadow witness - PW.2 went to the house of accused. The appellant received the alleged bribe amount and kept in his pant pocket. The complainant gave a signal to Lokayukta police, then they came inside house and caught hold the accused, recovered the alleged bribe amount from the possession of accused. The pant pocket of accused was washed in sodium carbonate solution and the same turned to pink color. After completing investigation, the investigating 4 officer has filed charge sheet against the accused for the offences stated above.
4. The prosecution in all examined ten witnesses as PWs.1 to 10, got marked thirty four documents as per Exs.P1 to P34 and Ex.D1 was marked during the cross-examination of PW.2 and got identified twenty six material objects as per M.Os.1 to 26. Thereafter statement of accused as required under Section 313(1)(b) of Code of Criminal Procedure, (for short hereinafter referred to as 'Cr.P.C.') has been recorded. The accused denied the incriminating evidence appearing against him. He has stated that he has been falsely implicated in the case. Learned Special Judge, after hearing the arguments, convicted the accused for the offence punishable under Sections 7 r/w 13(2) and 13(1)(d) r/w 13(2) of P.C. Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- for the offence punishable under Section 7 r/w Section 13(2) of P.C. Act, 1988 and he was also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- for the offence 5 punishable under Section 13(1)(d) r/w Sec.13(2) of P.C. Act, 1988 which is now challenged in this appeal.
5. I have heard Sri. C.H.Jadhav, learned Senior counsel appearing for Sri. N.D.Gunde, learned counsel for appellant and Sri. Anil Kale, SPP for respondent.
6. Learned senior counsel for the appellant argued that the trial court has failed to appreciate both oral and documentary evidence in proper perspective. The ingredients of offence punishable under the provisions of P.C. Act, 1988, alleged against the accused are not at all proved. The trap itself was a pre-planed. Learned counsel argued that PW.2 who is a shadow witness was asked to go to Lokayukta office well in advance i.e., before filing the complaint by PW.1 complainant. This fact is not properly appreciated by the learned Sessions Judge. This has occasioned in failure of justice. It is also argued that the cheque in question was the one which could not have been credited to anybody's account except to the account of PW.1/complainant. To get such a money, there was no occasion at all for PW.1, to get favour from the accused. Learned senior counsel also argued that 6 the earlier PW.1/ complainant has written the complaint in his hand writing, but the said complaint is not produced and it is suppressed as per the evidence of PW.1. Subsequently, the complaint came to be computerized and it is not stated anywhere by the complainant as to what happened to the original complaint, which was written by him in his hand writing. It is stated by PW.2 in his evidence that the appellant/accused has given the statement which was dictated by the Lokyuktha police. PW.2 does not identify the voice in the voice recorder. PW.2 has stated that as instructed and as dictated by Lokayukta police, he has given the evidence. It is evident that PW.2 acted as panch witness for Lokyukta police in number of trap cases. He is a professional stock panch witness for Lokayukta police. His evidence has not been appreciated correctly by the learned Sessions Judge. Neither demand of bribe by accused nor any acceptance is proved. Learned senior counsel further argued that when PWs.1 and 2 went to the chamber of accused in hospital, as stated by PW.1, number of persons were present. But PW.1 did not enter the chamber. The spot panchanama drawn is not in compliance with Section 100(4) of Cr.P.C. and 7 Ex.P22 - cheque does not require signature of accused/appellant. Ex.P24 - explanation given by the appellant/accused shows he has denied the entire raid. There are contradictions and inconsistencies in the evidence of PWs.1 and 2, wherein they could not state as to in which hand the bribe money was received by the accused. Infact, the police have caught hold the accused and they have dipped both hands of accused in the sodium carbonate solution. Therefore, when neither the demand nor acceptance of bribe is proved, the appellant cannot be convicted for the above offence. In support of his arguments, learned senior counsel relied on the judgment of Hon'ble Supreme Court reported in 2022 Livelaw (SC) 192 in the case of K.Shanthamma Vs. The State of Telangana. In the above decision, the Hon'ble Supreme Court, referred to its earlier decision in the case of P.Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152. The learned senior counsel also relied on the decision of Hon'ble Supreme Court reported in AIR 1979 SC 1191 in the case of Panalal Damodar Rathi Vs. State of Maharashtra. Learned senior 8 counsel also relied another decision of coordinate bench of this court in Crl.A.No.2818/2011 dated 22.06.2021 in the case of The State of Karnataka Vs. Ramesh Appanna Mareppagol. It is argued that in view of the principles referred above, the conviction is bad in law. With these arguments, appellant prayed to set aside the judgment of conviction and order of sentence.
7. Against this learned Special public prosecutor, argued that evidence of PW.1/complainant and PW.2/Shadow witness supports the case of the prosecution. There is evidence to show that the accused demanded and accepted the bribe amount and trap panchanama indicates that the appellant has received the amount. There may be some discrepancy while giving evidence by PWs.1 and 2, as they are deposing after a gap of four years and such discrepancies are bound to occur. Simply because they are not able to state consistently from which hand, the money was received by accused is immaterial. PW.3 - official witness has also supported the case of the prosecution. The learned trial judge has considered the evidence in proper perspective and has assigned reasons for arriving at a right conclusion. There is 9 absolutely no ground to interfere with the well reasoned judgment. In support of his argument, he relied on the decision of Hon'ble Supreme Court in the case of Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) passed in Crl.A.No.1781/2009 dated 27.11.2019.
8. I have meticulously perused the evidence on record and also the judgment of the trial court. Admittedly, PW.1 - V.N.Joshi, was working as health instructor and now he retired from the service. It is also evident that he was earlier working in Primary Health Centre, under the accused. Before filing of the complaint against accused, PW.1 was transferred and posted to Shidaginamola Primary Health Centre on O.O.D. PW.1 deposed that he has submitted an application for getting the special increment, as he passed SSLC in Kannada language as per government order. According to PW.1, the appellant/accused had asked him to give Rs.15,000/- as bribe to prepare bills for getting arrears of increment. PW.1 informed the accused that once the bill for payment of salary of arrears is approved and cheque is received from government, he will give the money. 10 Absolutely there is nothing in the evidence of complainant as to when the accused demanded such money. It is a vague evidence. PW.1 has stated that the accused informed PW.1/complainant on 22.7.2008 that the cheque is received and asked him to bring the bribe money. So he lodged the complaint before Lokayuktha.
In the cross-examination, PW.1/complainant admitted that both accused and himself belongs to same village. The complainant was working as District Health Instructor from 2002 to 2010 at Primary Health Centre. He knew the process of getting the arrears of salary increment and there was no difficulty for him to get the same. He also submitted the requisite documents to the government for sanction of the arrears of salary increment. At one instance, complainant states that from the government, the cheque was issued in the name of medical officer/who is the accused and not in his name. At the subsequent stage, PW.1 admitted that the said amount cannot be credited to the account of Medical Officer. He also stated that the said work was attended by One Sri. Nagaraja Shetty, First Division Assistant/PW.3, working in Primary Health Centre. PW.1 has only contacted the accused 11 through mobile phone. PW.1 has not met the said Nagaraja Shetty/PW.3. But no mobile phone of either accused or PW.1 is seized or their numbers were noted. The complainant/PW.1 is not able to say the mobile phone number of accused. This itself shows that somehow he tried to falsely implicate the accused in this case. PW.1 has also deposed that he has not met the accused, when he was informed by accused regarding receiving of cheque from the government. PW.1 admits that he had already prepared the complaint in his hand writing, when he went to Lokayuktha police for lodging complaint, but as PW.1's hand writing is not good, Lokayuktha police asked him to get it typed. This shows that the original complaint was written in his handwriting, but the same is not produced and it is suppressed. PW.1 does not know when the panchas were called to Lokyukta office and he does not know where the complaint was sent and who has called the panchas. Further in the cross-examination, he has stated that he went along with Lokayuktha police to primary health centre. There is a separate chamber for the accused. When he went to the chambers of accused, there are seven to eight patients were present and accused was checking the 12 patients. PW.1 was present in the chamber for about 3 to 4 minutes, and panch witness was standing about four feet away from him. There were number of persons present in the Primary Health centre. Neither PW.1 met the accused nor enquired accused about the cheque as stated by him, in the chamber of accused. Then PW.1 and PW.2 both went to the house as stated by accused. They went to the house of accused by walk. Accused went to his house on the motorbike. This also creates a doubt about the demand by accused. If at all, the accused was having the separate chamber, there was no difficulty for the accused to send the patients outside the chamber who were present in the chamber and to receive the amount. None of the persons who were present there were examined to show that PW.1 went to the chamber of accused. PW.1 has stated that he has not introduced PW.2 to the accused, but he went along with him. He does not know where lokayuktha police were standing, when he has given the signal. He has stated that the accused received the amount from his left hand. PW.1 denied that accused gave a memo to him for his negligence in discharge of the duty and the same are produced before 13 the court and marked as Exs.D1 and D2. This itself shows that complainant is having grudge against the appellant as he was issued a memo to PW.1, on the ground that he was not working properly. PW.1 also admitted that the salary arrears cheque will be a/c payee cheque and it was already credited to his account and the accused informed the complainant over mobile phone about receiving the cheque. The said cell phone was with him, when he went to Lokayuktha police, but they have not verified the same about the call details. The evidence of PW.1 witness shows that some how, he is trying to falsely implicate this accused about demand of bribe due to ill-will and his evidence is not corroborated by the evidence of PW.2 - the shadow witness.
9. PW.2 - K.Suresh Babu in his examination-in-chief deposed that he was working in Municipal Corporation and as informed by his superior officer, he went to Lokyuktha police office around 12:00 noon. Further, he was introduced to PW.1 and through PW.1 he came to know about the case details. Thereafter, Lokayuktha Police informed PW.1 and PW.2 to meet the accused. PW.2 stated that himself and PW.1 went to the hospital and asked the appellant about his 14 work. But PW.1 in his evidence stated that he never asked the appellant about the work. Thereafter, accused asked PW.1 to come to his house, accordingly, they went to his house. Then, the accused kept the amount received from PW.1 in his pant pocket and the police laid the trap. The cross-examination of PW.2 indicates that he is a stock witness of lokayukta police and his evidence is not reliable. PW.2 stated that he was informed by his superior officer at 10:30 a.m. to go to Lokayuktha police station and he went there around 11:30 p.m. to 12:00 noon. Here, the complaint itself is registered in the afternoon at 12:00 noon, then how before registration of complaint, this witness would have gone to Lokyuktha police is not forthcoming. PW.2 has stated that he has not given statement before police. He states that he went along with PW.1 to the office of the appellant/accused and there were five to six staff members present and the accused was not checking any patients. This is totally contrary and inconsistent to the evidence of PW.1. Because PW.1 stated that the appellant was looking after the patients. PW.2 has deposed that he never went inside the chamber, but was standing outside the chamber of accused, 15 and again this is contrary to the evidence of PW.1. This witness stated that after five to ten minutes, the appellant/accused came out. Himself and the complainant went on a motorbike to the house of appellant/accused and it took them about ten minutes to reach the house of the accused. Again this shows actually this witness was present or not, in the house, at the time of alleged trap. Because according to PW.1 they went to the house of accused by walk. It is very pertinent to note that as stated by this witness, there was only one main door to the house of accused, the house consists of a hall, one bed room. Accused was sitting on the sofa. PW.2 has stated that he has not gone inside the house of accused. Only PW.1 went inside the house and he was standing away from the door. So this shows that this witness not heard the accused demanding money or has seen the accused receiving the amount. PW.2 admitted that the cheque was written in the name of PW.1/complainant and he has not seen whether full name of complainant was mentioned in the cheque or not. Even panchanama was prepared by Lokayuktha police as stated by complainant. PW.2 has further stated that when they went to the house of 16 accused, it was around 04:15 p.m. and the complainant came out of house around 04:45 p.m. and during that half an hour, PW.2 has not gone inside the house of accused. So this itself falsifies the evidence of PW.1 and allegation of prosecution and creates doubt about presence of PW.2 at the time of incident, witnessing the demand or accepting the bribe by accused. PW.2 has admitted that the accused has denied having received any amount from the complainant and he has written the explanation as stated by Lokayuktha police. PW.2 has stated that he cannot identify whose was voice recorded in the cassette. There is no mention of any name in the said voice recorder. He has also stated that Lokayukta police directed him to depose as per their instructions before the court, otherwise they will take action against him. He has also admitted that he has given evidence in another five to six trap cases of Lokayukta police as panch witness. Even he has also accompanied the Lokayuktha police during the trap of one Hulikuntappa. This itself shows that he is a stock panch witness of lokayukta police and there is absolutely no corroboration to the evidence of PW.1 or charge and the 17 evidence of other witness much less, with the evidence of PW.1.
10. PW.3 - B.Nagaraja Shetty is a office superintendent of said Primary Health Centre. He has stated that he has prepared the arrears of increment bill and sent the same to the treasury and cheque was received. After receiving the cheque, he has taken the same for obtaining the signature of appellant/accused who was there in the hospital and number of patients were present. Then accused went to his house for lunch. After sometime, accused called PW.3 over phone and asked him to come to his house. Accordingly, PW.3 went to the house of accused around 1:30 to 02:00 p.m. Thereafter, he obtained the signature of accused to the accounts' register but no other persons were present in the house. In the cross-examination, he has stated that no panchanama drawn before him and he has not seen the trap being conducted and sodium carbonate solution turning pink colour. He has admitted that Exs.P21-documents seized at the time of trap, P22-Copy of cheque. The prosecution has treated him as hostile witness. PW.3 has stated that he has not given statement before police as per 18 Ex.P25 and Ex.P25(A). In the cross-examination by accused, he has admitted that the cheque was not issued in the name of complainant and cheque cannot be credited to any other account except to the account of accused. He has brought to the notice of the appellant about receipt of the cheque by Government, in the morning on 23.07.2008 at about 11:30 p.m., only and as the appellant was in the hospital and checking the patients, he did not meet him and the appellant went to house at about 1:30 for lunch. He has admitted that PW.1 has given a complaint against him also to the Lokayuktha police. The evidence of PW.3 falsify the charge leveled against accused.
11. PW.4 - Ganapathi is working as Assistant Engineer in Department of Public works, he has stated about preparing the map of place of trap as per Ex.P26.
12. PW.5 - B.G.Seshagiri, who is working as Senior Chemical examiner in Public Health department who has received nine sealed articles for examination along with letter of Superintendent of Police. He has examined those articles on 30.09.2008 and given his report as per Ex.P27. He has further stated that article No.8 of Ex.P27 i.e., pant pocket of 19 accused which was washed, consists of the element of Phenolphthalein and sodium carbonate liquid. Ofcourse, he has admitted in his cross-examination that he has not mentioned the date in Ex.P27 when he examined M.Os.21 to
24.
13. PW.6 - Rafiq is a Photographer. He has stated in his evidence that he has taken the photos as per Exs.P2 to P9. He has stated in his cross-examination that he took the photos, as per the instructions of Lokayuktha police.
14. PW.7 - Dr.Jayakumar, Medical Officer, working in Animal husbandry Centre. He has stated about issuing service details of accused as per Ex.P28.
15. PW.8 - S.Angadi, DSP, Kundapur who is an investigating officer has stated that one Sri. Anilkumar Boomareddy, Police Inspector has handed over the further investigation of this case to him. Thereafter, PW.8 after receiving reports, filed the charge sheet after taking sanction as per Ex.P29.
16. PW.9 - M.N.Rudrappa, CPI stated about receiving the complaint, registering the case, calling the panchas, 20 preparing entrustment panchanama and with the help of other police staff, he has applied Phenolphthalein powder to currency notes and prepared sodium carbonate solution and conducted entrustment panchanama. Then he has given voice recorder to PW.1 and kept the amount in the pocket of complainant. He has drawn Ex.P10 - Entrustment Panchanama between 12:45 to 1:30 p.m. and then around 1:30 p.m. to 02:00 p.m. left their office to Primary Health centre of accused and reached the said place around 3:15 p.m. PW.9 asked the complainant/PW.1 and Shadow witness/PW.2 to meet the accused. PW.1 and PW.2, after meeting the accused, does not make any signal but they went to the house of accused situated near SBI Bank road. They also followed PW.1 and PW.2. Then at 03:45 p.m. the complainant gave a signal and they went inside the house of accused and caught hold him and asked him to give the bribe money. Thereafter, Lokayuktha police brought two separate bowls and prepared sodium carbonate liquid solution and dipped the hands of accused in the said liquid and the same turned into pink colour. Then PW.9 also seized the pant of accused which was worn by him at the time of trap and the 21 same was also dipped in sodium carbonate solution bowl and the same also turned into pink colour. Thereafter, the accused has given the written explanation as per Ex.P24. Then police arrested the accused. In the cross-examination, PW.9 has admitted that PW.1 has not brought any complaint which was written by him in his hand writing but he has brought the complaint which was typewritten. He has also stated that the complainant knew about procedure of getting the cheque. PW.9 has also stated he does not know as to when the panchas and complainant went inside the hospital. He does not know whether any other persons were present there. He has stated that complainant went inside the house of accused and after five to six minutes, he came out, gave signal, thereafter his staff went inside, caught hold the accused. This evidence is inconsistent and contrary to evidence of PWs.1 and 2. Because, PW.2 stated that PW.1 went inside the house of accused for about half an hour. PW.2 stated only after half an hour, the complainant came out. PW.2 has not at all gone inside the house of accused. PW.2 has clearly admitted when PW.1 went inside the house of accused, PW.2 was standing outside the door of accused. 22 This itself shows that PW.2 is only a stock panch witness and was asked to depose as stated by Lokayuktha police as he was threatened that they will take action against him. PW.9 has also admitted that the appellant/accused told him that he neither demanded any amount nor received any amount. He has also admitted that in the voice recorder clippings, name of no person was mentioned. So his evidence will not help the prosecution. On the other hand his evidence creates doubt about investigation done by him and hence makes prosecution case and allegation further doubtful.
17. PW.10 - Smt. Padmavathi, Deputy Secretary to Government who has accorded sanction for prosecution of accused. This aspect is not much argued by appellant.
18. On considering the entire evidence of PW.1, PW.2, PW.3 and PW.9, perusing the evidence of panch witness and photos, it is evident that complainant is having grudge against the accused. It is also evident that the accused had issued a memos to PW.1/complainant for negligence in duty. Infact, PW.1 was transferred from the said place. Thereafter he has lodged this complaint. The 23 appellant/accused being the drawing officer of complainant, has sent all the documents in respect of PW.1's increment arrears and the cheque was received on 22.07.2008 as evident from the cheque itself. PW.3 states that he brought it to the notice of accused regarding receiving of cheque only on 23.07.2008 in the afternoon and appellant/accused has signed the accounts register. It is evident that the appellant/accused cannot withhold the cheque. There is no delay on the part of the accused in issuance of the cheque to the complainant. There is no material or iota of evidence to show that earlier appellant/accused demanded any bribe through phone. There is no phone call records in this regard. Simply stating that accused demanded bribe will not help the prosecution to prove its case when there is no oral evidence or documents to prove the same.
19. The evidence of PW.2 shows that he has neither seen the appellant/accused demanding or accepting the bribe. He is a stock panch witness of lokayuktha police and his evidence is totally inconsistent and contradictory with other prosecution evidence.
24
20. The learned senior counsel relied on the decision of Hon'ble Supreme Court in the case of K.Shanthamma1 supra, wherein the Hon'ble Apex Court has held that the proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the P.C.Act. Failure to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person or accused would not entail his conviction. Further in the above decision, the Hon'ble Supreme Court has referred to its earlier decision P.Satyanarayana Murthy, (Supra)2 and at paragraph nos.7 and 9, it is held as under:
"7. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the P.C. Act. In the case of P.Satyanarayana Murthy V. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 1 2002 LiveLaw (SC) 192 2 (2015) 10 SCC 152 25 152 this court has summarized the well-settled law on the subject in paragraph 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.
9. PW.1 described how the trap was laid. In the pre-trap mediator report, it has been recorded that LW8, Shri R.Hari Kishan, was to accompany PW1 - complainant at the time of offering the bribe. PW7 Shri P.V.S.S.P. Raju deposed that PW8 Shri U.V.S.Raju, the Deputy Superintendent of Police, ACB, had instructed LW8 to accompany PW1 - complainant inside the chamber of the appellant. PW8 has accepted this fact by stating in the examination-in-chief that LW8 was asked to 26 accompany PW1 and observe what transpires between the appellant and PW.1 PW8, in his evidence, accepted that only PW1 entered the chamber of the appellant and LW8 waited outside the chamber. Even PW7 admitted in the cross- examination that when PW1 entered the appellant's chamber, LW8 remained outside in the corridor. Thus, LW8 was supposed to be an independent witness accompanying PW.1. In breach of the directions issued to him by PW8, he did not accompany PW1 inside the chamber of the appellant, and he waited outside the chamber in the corridor. The prosecution offered no explanation why LW8 did not accompany PW1 inside the chamber of the appellant at the time of trap."
21. Learned senior counsel for the appellant has also relied on the decision in the case of Panalal Damodar Rathi3 referred supra, wherein the supreme court dealt with the provisions of Prevention of Corruption Act and evidence and proof. At paragraph No.9 it is held as under:
"9. It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the 3 AIR 1979 SC 1191 27 money to the second accused is not spoken to by the Panch witness P.W.3. According to Panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that P.W.3 does not mention about the appellant asking the complainant whether he had brought the money to the second accused. Omission by P.W.3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant.. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and therefore, the evidence of the complainant on this aspect cannot be relied on."
22. Learned senior counsel also relied on the decision of this Court in the case of The State of Karnataka Vs. Ramesh Appanna Mareppagol dated 22.06.2021 in Crl.A.No.2818/2011 wherein at paragraph No.18, this court has referred to the judgment of the Hon'ble Apex Court in the case of P. Satyanarayana Murthy (supra) and held at paragraph No.18 as under :
28
"18. The Hon'ble Apex Court in the case of P.Satyanarayana Murthy Vs. District Inspector of Police State of Andhra Pradesh and Another held as under:
20. This Court in A.Subair v. State of Kerala while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p.593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
21. In State of Kerala v. C.P.Rao, this Court, reiterating its earlier dictum, vis-à-
vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.29
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it 30 was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
23. The Hon'ble Supreme Court in the decision in the case of Dashrath Singh Chauhan Vs Central Bureau of Investigation in Criminal Appeal No.1276 of 2010 31 dated: 09-10-2018 wherein the Hon'ble Supreme Court of India has held as under:
18) In the second place, the learned
counsel contended that the appellant's
conviction is based only on the evidence
of a shadow witness (PW-2) whereas
the evidence of the Investigation
Officer, Mr. Kaul (PW-6) was not
believed due to his doubtful integrity.
19) It was his submission that the basic
requirements in such a case, namely,
proving of "demand of bribe and its
acceptance by the appellant" was not
proved much less beyond reasonable
doubt. It was urged that at best what
the prosecution was able to prove was the
"demand" of bribe made by the appellant to the Complainant but not "its acceptance"
because the evidence, in clear terms, established coupled with the findings of the Courts below that the appellant did not accept the money but it was accepted and recovered from the possession of Rajinder Kumar(A-1).
20) It was, therefore, urged that since
the acceptance of bribe money was not
proved qua the appellant and nor it
32
was proved that Rajinder Kumar
accepted it for and on behalf of the
appellant, the appellant's conviction
under any of the provisions of the PC
Act much less under Sections 7, 13(2)
read with Section 13(1)(d) was not
legally sustainable and hence it deserves to be set aside.
25) In our considered opinion, when the charge against both th accused in relation to conspiracy was not held proved and both the accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the appellant too was entitled for his clean acquittal from the charges under the PC Act.
29) It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the appellant". As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from 33 the possession of Rajinder Kumar-
co-accused (A-1).
24. The Hon'ble Supreme Court of India in the case State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede4 at paragraph No.16 held as under:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the fundamental facts must be established by the prosecution. Even while 4 (2009) 15 SCC 200 34 invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
25. Therefore, in the light of principles stated by Hon'ble Supreme Court of India, in the above referred decisions, if the present allegation of prosecution and evidence is considered, then it is evident that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt.
26. The learned Sessions Judge in appreciation of the evidence of PW.2, is not at all in conformity with settled principles regarding appreciation of evidence. The reasons assigned by the learned Sessions Judge for believing the evidence of PW.2 is not legal, proper and correct. The learned Sessions Judge failed to appreciate the principles stated in the decision relied on by the appellant. On the other hand, learned Sessions Judge wrongly came to the conclusion that the evidence of PW.1 is corroborated by the evidence of PW.2. The learned Sessions Judge held that the fact of 35 drawing up Ex.P20 - Trap Panchanama and Ex.P10 - Entrustment Panchama is proved from the testimonies of PW.1 and 2, which is not correct. The evidence of chemical examiner is of no help to the prosecution. There is no evidence regarding recovery of money. The proper explanation was given by accused under 313 Cr.P.C. statement. It is evident that the learned Sessions Judge has wrongly came to the conclusion that the appellant who is the responsible officer, entrusted to sign the arrears of salary cheque issued to PW.1. On the other hand, the cheque was received from the case worker namely - Sri. B.Nagaraja Shetty/PW.3 and he took the signature of appellant/accused to accounts register. Learned Sessions Judge wrongly came to the conclusion that appellant/accused has taken bribe of Rs.15,000/- for signing and preparing the salary bill of PW.1 which is again not true. When no cheque is to be signed by appellant/accused, the question of demand or accepting the bribe amount does not arise. It is evident that PW.1 is entitled for increment as per the government order, since he has passed SSLC in Kannada language. In that circumstances, PW.3 prepared the bill of PW.1 and cheque 36 was received by Government. There is nothing to show that any delay is caused by this appellant/accused to issue cheque. On the other hand, PW.3 who was in-charge of it and had prepared everything, the appellant/accused has nothing do with preparation of bill. The learned Sessions Judge though observed that there are material contradiction and inconsistencies, but again stated that they are not material one. The learned Sessions has not appreciated the oral and documentary evidence of prosecution properly. This has resulted in miscarriage of justice. Neither demand of bribe nor acceptance is proved. Therefore, the ingredients of offence under Sections 7, 13(2) and 13(1)(d) r/w 13(2) of P.C Act are not at all proved beyond all reasonable doubt by the prosecution. As the evidence of prosecution witness creates doubt about charge leveled against accused, the benefit of doubt should go to accused. On re-appreciating the evidence of prosecution witnesses, I found, there is no corroboration in evidence of PWs.1 and 2 as discussed above. On the other hand, the evidence of prosecution is full of contradictions and inconsistencies. The possibility that PW.1 being inimical and having ill-will towards accused, for having 37 issued memos for his negligence in work, got filed a false case against the accused also cannot be ruled out. This enmity and ill-will like double edged weapons, it cuts either way. It is settled principles of law that prosecution has to prove its case beyond all reasonable doubt. There is lot of different between 'may be true' and 'must be true'. If from the evidence of prosecution, two views are possible, then the view favourable to the accused will have to be accepted by Court. PW.1 who is highly interested person, his evidence shows he is not reliable. PW.2 - shadow witness has neither seen or heard, the accused demanding or accepting the bribe money. He is stock panch witness for Lokayukta Police, this evidence does not corroborate evidence of PW.1. But it is contrary and inconsistent with evidence of PW.1. PW.3 also does not support the demand of bribe or acceptance. Therefore, the appellant/accused is entitled for benefit of doubt and entitled for acquittal. The judgment of conviction which is perverse, illegal and not based on sound principles in appreciating the evidence in cases arising out of Prevention of Corruption cases and needs to set aside and appeal deserves to be allowed.
38
In the result, I pass the following:
ORDER (1) The appeal is allowed.
(2) The judgment of conviction and order of sentence passed by Principal Sessions (Spl.) Judge, Bellary in Spl.Case No.22/2010 dated 22.03.2013 is hereby set aside.
(3) The appellant/accused is hereby acquitted of the offence under Sections 7 r/w 13(2) and 13(1)(d) r/w 13(2) of P.C. Act, 1988.
(4) Bail bonds, if any executed by the
appellant/accused stands cancelled.
(5) Send back the records to trial court.
SD/-
JUDGE
HJ