Karnataka High Court
Smt.Sujata W/O Sripad Kulkarni vs The State Through Lokayuta Police ... on 6 June, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.A No. 200032 of 2017
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO. 200032 OF 2017 (374-)
BETWEEN:
1. SMT.SUJATA W/O SRIPAD KULKARNI
OCC: SDA INTHE OFFICE OF COMMISSIONER OF
EDUCATION, GULBARGA, R/O NEAR VIJAYA
VIDYALAYA SCHOOL BANCK COLONY, GULBARGA
...APPELLANT
(BY SRI. AVINASH A UPLOANKAR,ADVOCATE)
AND:
1. THE STATE THROUGH LOKAYUTA POLICE STATION
KALABURAGI, DIST.KALABURAGI,NOW
REPRESENTED ADDL. SPP HIGH COURT OF
KARNATAKA KALABURAGI BENCH
...RESPONDENT
(BY SRI. SUBHASH MALLAPUR, ADDL. SPP (LOKAYUKTA)
Digitally signed THIS CRL.A. FILED U/S. 374(2) OF CR.P.C PRAYING TO CALL FOR
by KHAJAAMEEN
L MALAGHAN RECORDS AND EXAMINE THE RECORDS IN SPECIAL CASE NO.379/2011
Location: HIGH AND SET ASIDE THE JUDGMENT PASSED BY THE LEANRED PRINCIPAL
COURT OF
KARNATAKA SESSIONS JUDGE KALABURAGI FOR CONVICTING THE APPELLANT BY ITS
JUDGMENT DATED: 8TH FEBRUARY 2017, IN THE INTEREST OF JUSTICE
AND EQUITY WHEREIN THE APPELLANT UNDERGO IMPRISONMENT FOR A
PERIOD OF SIX (6) MONTHS AND SHALL PAY A FINE OF RS.3,000/-
(RUPEES THREE THOUSAND ONLY) IN DEFAULT OF PAYMENT OF FINE, SHE
SHALL UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF TWO (2)
MONTHS WHEREIN THE APPELLANT UNDER IMPRISONMENT FOR A PERIOD
OF ONE (1) YEAR AND SHALL PAY A FINE OF RS.5,000/- (RUPEES FIVE
THOUSAND ONLY0 FOR THE OFFENCE UNDER SECTION 13(1) (d)
PUNISHABLE UNDER SECTION 13(2) OF THE PREVENTION OF CORRUPTION
ACT IN DEFAULT OF PAYMENT OF FINE, SHE SHALL UNDERGO FURTHER
IMPRISONMENT FOR A PERIOD OF SIX (6) MONTHS.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 200032 of 2017
JUDGMENT
This appeal under Section 374(2) of Cr.PC is filed challenging the judgment and conviction dated 8.2.2017 and the order of sentence convicting the appellant - accused herein for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing the accused to undergo imprisonment for a period of six months and to pay fine of Rs.3,000/- and in default, undergo further imprisonment for a period of two months for the offence punishable under Section 7 of the said Act and also to undergo imprisonment for a period of one year and fine of Rs.5,000/- for the offence under Section 13(1)(d) punishable under Section 13(2) of the Act (for short `Act').
2. The brief facts of the case of the prosecution is as follows:
i) The defacto complainant was working as a
Hindi Teacher in Shantivardhak PU College of
Kamalanagar, Taluk Aurad. On 14.10.2008, when the
defacto complainant - PW2 working as Hindi teacher in Shantivardhak P U College of Kamalanagar, Taluk Aurad, was transferred as Hindi teacher in the place of PW5 in Akkamahadevi Girls High School, in pursuance of the same, he joined the duty as Hindi teacher in the said school. The Management sent a proposal for according approval to the order of transfer to the Joint Director of Public Instructions on 30.9.2008, and pending approval, -3- CRL.A No. 200032 of 2017 the salary of PW2 from November, 2008 till lodging of the complaint was not released.
ii) Upon enquiry, the Block Education Officer informed that, only after approval from the office of the Joint Director, his salary will be disbursed, and the defacto complainant met the accused working in the office of the Joint Director. The accused demanded gratification of Rs.10,000/-, and when the defacto complainant expressed his inability to pay the gratification amount, at that time, the accused informed PW2 that, he should request Prakash Hippalgaon to pay the amount and after negotiation, the gratification amount was settled at Rs.8,000/-. Accordingly, the conversation of demand was recorded through a tape recorder, which was given by the Lokayukta.
iii) PW2 collected Rs.8,000/- and contacted the accused over phone on 30.7.2008, who informed him that she will be in the office, and the gratification amount should be kept in a cover and handed over to her. Accordingly, PW2, who was not desirous to pay the gratification amount, lodged the complaint before the Lokayukta to take action against the accused.
iv) On the basis of the FIR lodged, the Lokayukta, Kalaburagi registered the case in Crime No.12/2009 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and -4- CRL.A No. 200032 of 2017 summoned two panch witnesses. The conversation recorded in the tape recorder was played, and also it was reduced into writing on a separate paper. On production of currency notes by the defacto complainant, a demonstration mahazar was conducted, later laid the trap on the accused, and recovered the tainted currency notes from the possession of the accused. Thereafter, the Investigating Officer, after completion of the investigation, laid the charge sheet against the accused.
v) The Special Court, after taking the cognizance of the aforesaid offences, issued summons. The accused appeared before the Special Court, and she was furnished with the charge sheet and all other documents. The charge was framed for the aforesaid offences, and the same was read over and explained to the accused. The accused having pleaded not guilty claimed to be tried.
3. The prosecution to prove its case examined nine witnesses as PWs.1 to 9 and marked 30 documents as Exs.P1 to P30 along with 9 material objects as MOs.1 to 9. The accused got marked the document as Ex.D1.
4. The statement of the accused under Section 313 of Cr.PC was recorded and the case of the accused was a total denial and thereafter, the accused filed a defence statement.
5. The learned Sessions Judge, after examining the oral and documentary evidence, recorded the finding that, the prosecution has proved the case against the accused beyond all -5- CRL.A No. 200032 of 2017 reasonable doubt by establishing the guilt of the accused, and accordingly passed the judgment of conviction and order of sentence.
6. The learned counsel for the appellant submits that, as on the date of trap, there was no work pending with the accused, and in the absence of any demand, which is an essential ingredient so as to constitute the commission of the aforesaid offences, the impugned judgment of conviction and order of sentence is not sustainable.
7. The learned Additional State Public Prosecutor for the respondent - Lokayukta submits that the oral and documentary evidence clearly establish that, when the trap was conducted, the work of PW2 was pending with the accused, and recorded the conversation, clearly indicates that, there was a demand of gratification made by the accused. Hence, he submits that the learned Sessions Judge, after appreciation of evidence meticulously, has rightly passed the impugned judgment of conviction and order of sentence and does not warrant any interference.
8. Considered the submissions of the learned counsel for the parties.
9. Ex.P17 is the transcription of conversation recorded in the tape recorder. The allegation against the accused is that, she had demanded the gratification of Rs.8,000/- for approval of mutual transfer of PW2 and PW5. Perusal of conversation -6- CRL.A No. 200032 of 2017 details at Ex.P17 indicates that, there is no specific demand much less the general demand that, the accused has demanded a sum of Rs.8,000/- as gratification amount. Even otherwise, Ex.P17, the transcription of conversation is not supported by certificate under Section 65 of the Indian Evidence Act, and in the absence of the same has no evidentiary value.
10. The attendance register marked as Ex.P17(a) and 17(b) indicates that, the accused was on leave on 25.7.2009 and 26.7.2009 respectively. The complainant-PW2 has alleged that, seven days prior to the lodging of FIR, the accused had demanded the gratification amount of Rs.10,000/-, and thereafter reduced the same to Rs.8,000/-. The attendance register clearly depicts that, the accused was not on duty as on the date when she had allegedly made first demand with PW2.
11. Ex.P15 is the note sheet pertaining to according approval of mutual transfer of PWs.2 and 5. The note sheet indicates that, on 16.7.2009, the accused had forwarded the file to PW7 for approval.
12. PW7, who was working as Director of Public Instructions, and is the competent authority to accord approval, has deposed on oath that, the approval of transfer of PW2 and PW5 was accorded on 16.7.2009, which clearly implies that, as on the date when the trap was conducted, there was no work of PW2 pending with the accused.
-7- CRL.A No. 200032 of 201713. Ex.P14 - defence is the statement of accused dated 30.7.2009, wherein the accused has stated that the cover containing the tainted money has been handed over to him and without noticing the contents of the cover placed the same in the drawer, and that she had not demanded the gratification from the defacto complainant, and the same is corroborated by panch witness viz. PW.1.
14. The prosecution to prove the commission of the offences under the PC Act has to satisfy the essential ingredients which are as under:
"Demand and acceptance of bribe money;
Handling of tainted money by the accused on the day of trap (colour test);
Work of the complainant must be pending as on the date of trap with the accused."
15. The allegation of demand and acceptance made by a public servant must be established beyond reasonable doubt. The constitution bench of the Hon'ble Supreme Court in the case of Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 has summarized the issues regarding proving the demand and acceptance made by a public servant and when presumption can be made for having demanded the illegal gratification at paragraph 88 and is as follows:
88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.-8- CRL.A No. 200032 of 2017
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by -9- CRL.A No. 200032 of 2017 the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub- para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.
16. The Hon'ble Supreme Court has observed that to constitute the offence under Section 7 of the P C Act relating to public servant taking bribe, requires a demand of illegal gratification and the acceptance thereof and the proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the P C Act.
17. The presumption cannot be raised against the accused as specified under Section 20 of the Act since the essential ingredient being 'demand' and 'acceptance' is not satisfied. The prosecution has failed to prove that, the accused had demanded the money with an intention to show official favour for approving the transfer of PW.2 and PW5, more so, in
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CRL.A No. 200032 of 2017the backdrop that the work of the complainant was not pending before the accused or the higher officer as on the date when the accused had allegedly demanded gratification to show official favour. In the absence of any essential ingredients so as to constitute the commission of offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988:
18. The learned Sessions Judge without appreciating the evidence in a proper prospective, and by ignoring the essential ingredients so as to constitute the commission of offence alleged against the accused, has passed the impugned judgment of conviction and order of sentence, which is not sustainable in law. Accordingly, I pass the following;
ORDER
i) Criminal appeal is allowed.
ii) The judgment of conviction and the order of
sentence dated 08.02.2017 passed in Special Case
No.379/2011 by the learned Principal Sessions Judge, at Kalaburagi, is hereby set-aside.
iii) The appellant - accused is hereby acquitted of the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988.
iv) The learned Sessions Judge is hereby directed to release the fine amount, if any, which is deposited by the appellant.
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CRL.A No. 200032 of 2017The bail bonds executed, if any, stand canceled.
Sd/-
JUDGE BKM,KJJ List No.: 1 Sl No.: 88