Karnataka High Court
Mr. H. C. Sridhara vs State Of Karnataka on 21 April, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.748/2011
BETWEEN:
MR.H.C.SRIDHARA,
S/O CHELUVEGOWDA,
VILLAGE ACCOUNTANT,
DODDAKAVALANDHE HOBLI, NANJANGUD.
...APPELLANT
(BY SRI.BRIJESH PATIL, ADV.)
AND:
STATE OF KARNATAKA
THROUGH KARNATAKA LOKAYUKTA POLICE,
MYSORE.
...RESPONDENT
(BY SRI.B.S.PRASAD, SPL.PP.)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED
23.06.2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE,
MYSORE IN SPECIAL CASE NO.64/2008 AND CONSEQUENTLY
ACQUIT THE APPELLANT FROM THE CHARGES UNDER
SECTIONS 7, 13(1)(d) R/W SECTION 13(2) OF PREVENTION OF
CORRUPTION ACT, 1988.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2022 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY THROUGH VIDEO CONFERENCE AT
DHARWAD, THE COURT MADE THE FOLLOWING:
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JUDGMENT
The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the Principal Sessions Judge and Special Judge, Mysuru in Spl.Case No.64/2008 dated 23.06.2011 whereby the learned Special Judge has convicted the accused appellant herein for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C.Act' for short) and imposed sentence of imprisonment and fine on him.
2. For the sake of convenience, parties herein shall be referred with the original ranks occupied by them before the trial court.
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3. The brief factual matrix leading to the case are as under:
That the accused was working as a village accountant in the office of Tahasildar at Nanjangud. The complainant was in need of genealogical tree of his family and on 28.06.2007 he approached the accused/village accountant in the office of Tahasildar, Nanjangud requesting for the same. It is the specific case of the prosecution that accused has taken necessary information from the complainant and demanded Rs.300/- from him for issuing genealogical tree. When the complainant has expressed his inability to pay Rs.300/-, the accused asked him to come along with the money on the next day for collection of genealogical tree. As the complainant was not willing to pay the bribe, he lodged a complaint with the Lokayukta Police in Mysuru. In pursuance of the complaint, crime was registered and trap was 4 arranged. It is further case of the prosecution that investigating officer has secured the panchas and after conducting pre-trap procedure, a trap was arranged on 02.07.2007 and the accused was apprehended red- handedly when he received illegal gratification of Rs.300/-. Then trap mahazar was drawn by the investigating officer and he has also recorded the statement of the accused. Thereafter, he conducted further investigation and then submitted charge sheet against the accused for the offence punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the P.C.Act. The accused was arrested on the date of the trap and subsequently he was enlarged on bail.
4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Special Judge has taken cognizance of the offence. The accused was 5 represented by his counsel and prosecution papers have been furnished to the defence counsel.
5. After hearing the learned Special Public Prosecutor and defence counsel, the charge under Sections 7, 13(1)(d) r/w Section 13(2) of the P.C.Act is framed against the accused and the same is read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution has examined in all 7 witnesses as P.Ws.1 to 7 and also placed reliance on 14 documents marked at Exs.P1 to P14. Further, M.Os.1 to 7 were also marked. Ex.D1 came to be marked during the cross examination of P.Ws.2 and 3.
7. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the 6 accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial and he did not choose to lead any oral or documentary evidence in support of his defence. However, he has given explanation that complainant demanded the genealogical tree by deleting the name of his sister and as accused did not agree for the same, a false complaint came to be lodged against the accused.
8. After hearing the arguments and after perusing the oral as well as documentary evidence, the trial court has framed following points for consideration.
1) Whether the prosecution proves beyond reasonable doubt that the accused, being a Village Accountant at Nanjangud, he demanded an amount of Rs.300/- from the complainant, as illegal gratification other than legal remuneration as a motive for showing official favour, that is to issue Genealogical 7 Tree to the complainant, thereby committed an offence punishable under Section 7 of the Prevention of Corruption act, 1988?
2) Whether the prosecution proves beyond reasonable doubt that the accused on 02.07.2007 obtained the pecuniary advantage to an extent of Rs.300/- as a motive for an act to show the official favour in order to issue the Genealogical Tree and thereby he has committed an offence of criminal misconduct under Section 13(1)(d), which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988?
9. The trial court by the impugned judgment has answered both the points in the affirmative and convicted the accused/appellant herein by imposing sentence of imprisonment for six months with fine of Rs.3,000/- for the offence punishable under Section 7 of P.C.Act and simple imprisonment for a period of two years with fine of Rs.5,000/- with default clauses for the offence punishable under Section 13(1)(d) r/w 13(2) of the P.C.Act.
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10. Being aggrieved by this judgment of conviction and order of sentence, the accused has filed this appeal.
11. Heard the arguments advanced by the learned counsel for the appellant/accused and learned Special Public Prosecutor for the Lokayukta. Perused the records of the trial court.
12. Learned counsel for the appellant/accused would contend that the alleged facts do not constitute the offence as alleged. He would also contend that the trial court lost sight of the fact that accused is not the final authority to effect change of katha and he is only recommending authority. He would further contend that the trial court committed a grave error in holding the accused guilty, when admittedly as could be seen from Ex.P11, was signed and sent by accused as early as 28.06.2007 and as on the date of filing of the 9 complaint nothing remained to be done on the part of the accused in respect of the said file. Hence, it is contended that there was no occasion for the accused to seek any illegal gratification. He would further contend that, P.W.4 has clearly admitted in the cross- examination that accused has disposed of the application by recommending for issuance of genealogical tree. Hence, it is contended that indictment of the accused for the alleged act discharged by other officials calls for interference by this court. He would contend that sanctioning authority has issued the sanction order in a mechanical way without applying the mind. He would also contend that the trial court has ignored the explanation offered by the accused at the earliest point of time, which is natural and worthy of acceptance. He would also contend that hand wash of the of the accused was also taken only after 10 phenolphthalein powder smeared currency notes were produced by the accused at the instance of the investigating officer, which discloses that he did not touch the amount earlier. He would also invite the attention of the court that informant was sent along with the voice recorder in pre-enquiry stage only and even as on the date of the trap. However, the investigation records do not reveal recording of conversation, which discloses that there was no demand for official favour. He would also contend that prosecution is required to prove demand for illegal gratification as a motive to show official favour and in the absence of demand, mere recovery of the amount does not conclusively establish the ingredients of the offence. He would also contend that no work was pending with the accused pertaining to the complainant as on the date of the trap. He would also contend that allegation of demand were not 11 established with the support of acceptable evidence. He would also contend that no motive is established as there was no work pending with the accused. He would also contend that element of recovery is required to be proved with the hand wash prior to recovery of the tainted currency notes and in the instant case, the hand wash was subsequent to recovery which completely supports the case of the accused and his defence. He would also contend that judgment of conviction and order of sentence suffers from infirmity and it is perverse which has resulted in miscarriage of justice. As such, he would seek for allowing the appeal.
13. Per contra, learned Special Public Prosecutor would contend that, admittedly the amount was recovered from the custody of the accused and the serial number of the recovered amount tallies with the amount entrusted to the complainant under the 12 entrustment mahazar. He would also contend that evidence of P.Ws.2 and 3 is consistent that the amount was taken from the pant of the accused only after his hand wash was taken and it is again supported by the evidence of P.W.7-investigating officer. He would contend that inconsistency in this regard in the evidence of P.W.1 has no relevancy and P.Ws.2 and 3 are independent witnesses and they had no grievance against the accused. He would also contend that nothing was elicited from the mouth of P.Ws.2 and 3 in the cross-examination except formal denial and mere pendency of the work is not a criteria. He would further contend that evidence clearly discloses that sanctioning authority has applied the mind and has granted sanction and minor typing errors do not have any much relevancy and it has not prejudiced the accused in any way. He would further contend that defence set up during the trial regarding 13 thrusting of the amount is not put forward while recording the statement under Section 313 of Cr.P.C. and the explanation of the accused under Section 313 of Cr.P.C. are quite inconsistent and contrary. He would contend that conduct of the accused itself establish that he was conscious to receive illegal gratification and there is no proper explanation and he has not made any attempt to prove his explanation and mere suggestion does not amount to rebuttal of the presumption. As such, he would contend that the trial court has appreciated all these aspects in proper perspective and after analyzing oral and documentary evidence has rightly convicted the accused. As such, he would seek for dismissal of the appeal by confirming the judgment of conviction and order of sentence.
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14. Having heard the arguments and after perusing the oral and documentary evidence, now the following points would arise for my consideration:
1) Whether the prosecution has proved beyond all reasonable that the accused has demanded and accepted illegal gratification from the complainant as alleged:
2) Whether the judgment of conviction and order of sentence passed by the trial court is perverse, arbitrary and capricious so as to call for any interference by this court?
15. It is the case of the prosecution that the accused being the village accountant at Nanjangud, Tahasildar office has demanded a sum of Rs.300/- from the complainant on 28.06.2007 for issuance of genealogical tree and on 02.07.2007 he was trapped red-handedly and tainted amount was recovered from his custody. The complainant is examined as P.W.1, 15 while P.W.2 is a shadow witness. P.W.3 is the second mahazar witness, who accompanied the raiding party. P.W.4 was the Tahasildar in whose presence and in his chamber the trap mahazar was drawn, but he has turned hostile. P.W.5 is the Junior Engineer who has drawn the sketch and his evidence is not challenged. P.W.6 is the sanctioning authority, while P.W.7 is the investigating officer.
16. Ex.P1 is the complaint, while Ex.P2 is the entrustment mahazar. Ex.P3 is the mahazar in respect of deferring trap. Ex.P4 is the trap mahazar, Ex.P5 is the portion of the statement of the P.W.4, while Ex.P6 is the descriptions of the currency notes, Ex.P7 is the explanation given by the accused immediately after the trap. Ex.P8 is the sketch, Ex.P10 is the sanction order, Ex.P11 is the FIR and Ex.P14 is the FSL report. M.O.1 is the tainted amount entrusted and recovered from the accused. M.O.2 is the hand wash of the 16 second pancha during the entrustment mahazar. M.O.3 is the hand wash of the accused. M.O.4 is the pant of the accused. M.O.5 is the sample phenolphthalein powder. M.O.6 is the remaining sodium carbonate liquid and M.O.7 is the remaining phenolphthalein powder.
17. In the instant case, there is no dispute of the fact that accused was working as a village accountant in Nanjangud. It is also an undisputed fact that complainant has approached the accused seeking for issuance of genealogical tree. The genealogical tree marked at Ex.D1 itself. The tone of cross- examination of the accused also discloses that raid is not under serious dispute. Further, it is also important to note here that accused has not disputed the recovery of the tainted amount from his custody. But it is the specific case of the accused that amount was thrusted forcibly in his pant pocket. However, the 17 defence of the accused in this regard is inconsistent. In the explanation submitted immediately after trap, it is specific contention of the accused that the amount was put into pocket of the accused by the complainant without his knowledge. But in the cross-examination a defence was taken that the amount was thrusted forcibly in his pocket. It is also important to note here that genealogical tree was prepared on 27.06.2007 itself and it is admitted fact. However, it was not handed over to the complainant and during the trap, it was seized from the custody of the accused.
18. The complainant was examined as P.W.1 and in his evidence he deposed that on 29.06.2007, he lodged the complainant against the accused regarding demanding illegal gratification of Rs.300/- and on 26.06.2007 and 27.06.2007 there was a demand of illegal gratification. He further deposed regarding he approaching Lokayukta police and 18 lodging the complaint and trap is being arranged on 29.07.2007 and the accused was not in the office and hence, it was deferred. On 02.07.2007, the trap was conducted and accused demanding and accepting illegal gratification of Rs.300/- from the complainant. This witness was treated hostile partially by the prosecution as he has stated in his examination-in- chief that amount was recovered first from the custody of the accused and later on the hand wash of the accused was taken. But the witness has denied this aspect and further denied giving statement in this regard. In the cross-examination, this witness specifically admitted that on 26.06.2007 there was no demand, but on 27.06.2007 there was a demand and admits that Ex.D1 genealogical tree was prepared on 27.06.2007. There are certain inconsistencies elicited in his cross-examination regarding voice recorder being handed over to him on 27.06.2007 and no voice 19 recorder is being handed over to him on 29.06.2007. He has also deposed that in RRT branch, he met the accused and a suggestion was made that while accused was moving towards the chamber of Tahasildar, the complainant has thrusted the amount in his pant pocket. He denied the said suggestion. The complainant has supported the case of the prosecution except minor discrepancies.
19. P.W.2-Jagadish is a shadow witness and he has fully supported the case of the prosecution regarding he being summoned on 29.06.2007 to Lokayukta office, drawing entrustment mahazar and P.W.3 being present there, complainant producing tainted amount recording serial number etc. and drawing entrustment mahazar as per Ex.P2. He further deposed that, they went for trap on that day, but due to absence of the accused, the trap was not successful and as such, they returned and the amount 20 was kept in almara by drawing mahazar as per Ex.P3. He further deposed that on 02.07.2007, again he and P.W.3 went to Lokayukta office and at about 2.00 p.m. the amount was removed from the almara and handed over to the complainant and he was also provided a voice recorder and then they proceeded for trap. He further deposed that at about 3.20 p.m. they went to the office of the accused and there the complainant met the accused and the accused asked him whether he brought what he had said and then complainant replied that he brought it and handed over Rs.300/- and accused received it from right hand and put it in his right side pant pocket and further stated that in 5-10 minutes he would hand over the genealogical tree. He further deposed that then signal being passed and trap is being conducted. He specifically deposed that the accused was taken to the chamber of Tahasildar and his hand wash taken first 21 and then tainted amount was recovered from his custody. He has also specifically stated that Tahasildar was also present during this period of drawing mahazar as per Ex.P4. The pant was also marked as per M.O.4. He further deposed that, on enquiry the accused has given explanation as per Ex.P7 regarding complainant putting the amount without his knowledge, which is incorrect statement. This witness was cross-examined at length, but nothing was elicited so as to impeach his evidence. The witness has consistently deposed that there was a demand and acceptance from the accused and the amount was paid in record room. A suggestion was made to this witness that first the amount was recovered and then hand wash was taken, but the he denied the said suggestion and he specifically asserted that first hand wash of accused was taken and then amount was recovered.
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20. P.W.3 is the second pancha and she has also deposed regarding she being summoned to the Lokayukta police station and entrustment mahazar was drawn on 29.06.2007 and on that day the trap could not be held due to absence of the accused, drawing mahazar as per Ex.P3 and on 02.07.2007 the trap being successful. She has also deposed that, first the hand wash of the accused was taken and then amount was recovered from the custody of the accused. This witness was also cross-examined at length, but nothing was elicited so as to impeach her evidence.
21. The evidence of P.Ws.2 and 3 is consistent and corroborative to each other. Further, the evidence of P.Ws.2 and 3 is again fully corroborated by the evidence of the investigating officer P.W.7. All along it is argued that genesis of the case itself is not established, as the complainant in the complaint 23 referred regarding he approaching the accused on 28.06.2007, but his evidence disclose that on 26th and 27th June, 2007 he has approached. But it does not have any much relevancy as Ex.D1 itself is prepared on 27.06.2007 as admitted by the accused himself. Further, it is the specific contention of the accused that, on that day the accused warned the complainant. Hence, this discrepancy does not go to the root of the case in any way.
22. P.W.4 is the Tahasildar in whose chamber the trap mahazar Ex.P4 was drawn. But he has turned hostile and he claimed that he returned when the trap mahazar was being typed and it is in last phase. But as per the case of the prosecution, in his presence only the trap mahazar was drawn. It is evident that this witness having retired from the service has turned hostile to the case of the prosecution regarding drawing trap mahazar in his presence. If at all, the 24 trap mahazar was not drawn in his presence, he being the Taluk Executive Magistrate would not have signed the trap mahazar Ex.P4, which clearly disclose that he intended to help the accused.
23. P.W.6 is the sanctioning authority and deposed regarding issuing sanction order. However, much arguments have been advanced by the defence counsel regarding non-application of mind, as in the sanction order there is reference of taking both hand wash, but admittedly, only right hand wash of the accused was taken which was tested positive to the phenolphthalein test. There is no dispute about the fact that there is some reference regarding both hand wash of the accused is taken in the body of the order, but that itself does not establish that there is no application of mind on the part of the sanctioning authority. The records does establish that amount was recovered, hand wash tested positive for the 25 phenolphthalein test and the accused has also admitted recovery of the amount from his custody. Under such circumstances, these minor discrepancies cannot be so relevant so as to suspect that the sanction order is without any application of mind.
24. The accused has taken two specific defences. According to him, he did not demand the amount nor accepted the amount. According to him, the complainant insisted the accused to give genealogical tree excluding the name of his sister, for which he did not agree and as such, he was scolded the accused. It is the contention of the accused that, with this vengeance, a false complaint came to be lodged. Further, according to the accused, the complainant has thrusted the amount in his pant pocket while he was proceeding to Tahasildar's chamber. However, in Ex.P7, which is the explanation given by the accused immediately, he asserted that 26 the amount was put in his pant pocket without his knowledge and in trial he is asserting regarding thrusting of the amount. These two defences are inconsistent. The evidence clearly discloses that the tainted amount of Rs.300/- which is marked as M.O.1 was recovered from his custody. Under Section 20 of the P.C.Act, there is a presumption in favour of the prosecution, which reads as under:
"20. Presumption where public servant accepts any undue advantage.- Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of n offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a 27 consideration which he knows to be inadequate under section 11."
25. So the wording used in the section is 'shall' and hence, it is a statutory presumption. When the amount was found in the custody of the accused, it shall be presumed that he has received it with dishonest intention and it is misconduct.
26. Learned counsel for the appellant/accused would contend that presumption is available only under Section 7 and not under Section 13(1)(d). However, prior to amendment, Section 7 deals with public servant taking gratification other than legal remuneration in respect of an official act. The learned counsel would further contend that there was no demand and it is not established. However, the evidence of P.Ws.1 and 2 clearly establish that there was a specific demand. P.W.2 in his evidence has specifically stated that the accused has asked the 28 complainant (ºÉýzÀÝ£ÀÄß vÀA¢¢ÝAiÀiÁ) and that itself discloses that he did expected something and there is no explanation from the accused in this regard.
27. Learned counsel for the appellant/accused has argued that mere recovery of the tainted amount from the custody of the accused does not amount to demand of illegal gratification. He would also placed number of citations on this point which were relied before the trial court. He would further contend that there was no work pending with the accused as on the date of the trap since Ex.D1 genealogical tree was prepared on 27.06.2007 itself as admitted by the parties.
28. Much arguments have been advanced regarding incorporation of Section 161 of IPC, which came to be deleted by 1988 amendment in view of enactment of P.C.Act. Sections 161 to 164 of IPC prior 29 to enactment of P.C.Act have dealt with public servant taking illegal gratification, but in view of enactment of P.C.Act, the said provisions were omitted. It is argued that prosecution is required to prove the conscious state of mind on the part of the accused in respect of receipt of illegal gratification. Hence, he would contend that in the present case, as the amount was thrusted in his pant pocket, the principles are not applicable. He would further contend that considering the cross-examination of the complainant, it is evident that he is not a bonafide person. He would also contend that his position is nothing more than that of accomplish. In this context, he placed reliance on the decision of the Hon'ble Apex Court in the case of Ram Krishnan and Another vs State of Delhi reported in AIR 1956 SC 476. However, the said argument does not inspire the confidence of the court in any 30 way. The facts of said case of being different, cannot be made applicable to the case in hand.
29. The Constitutional Bench of the Hon'ble Apex Court (Five Judges) in the case of Dhaneshwar Narain Saxena V. Delhi Administration reported in AIR 1962 SC 195 has specifically held that the misconduct of the public servant need not be in connection with his own official duty. Further, the Larger Bench of the Hon'ble Apex Court (Four Judges) in the case of Dhanvantrai Balwantrai Desai v. State of Maharashtra reported in AIR 1964 SC 575 has observed as under:
"Prevention of Corruption Act (2 of 1947), S.4(1) - Accused shown to have accepted money which was not legal remuneration - Presumption can be raised - Rebuttal must be by explanation which must be true and not merely plausible -
Presumption under S.4(1) and Evidence Act
S.114, distinction between - Whether
presumption is rebutted is question of fact - 31 Supreme Court will not interfere. Constitution of India, Art.136 - Evidence Act (1 of 1872), S.114
- Penal Code (45 of 1860), S.161."
30. The Larger Bench of the Hon'ble Apex Court has clearly held that, once it is shown that the accused has accepted the amount which was not a legal remuneration, the presumption is required to be raised and rebuttal must be by explanation which must be true.
31. The Hon'ble Apex Court (Three Judges) in the case of V.D.Jhingan vs. State of U.P reported in AIR 1966 SC 1762 has reiterated the principles enunciated by the Hon'ble Apex Court in the case of Dhanvantrai Balwantrai Desai (supra) and observed as under:
"To raise the presumption under S.4(1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received "gratification other than legal remuneration".
When it is shown that the accused has received a 32 certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of "money" is sufficient to raise the presumption.
The burden of proof lying upon the accused under S.4(1) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt."
32. Hence, the Hon'ble Apex Court including the Constitutional Bench consistently held that once the amount is held to be found in the custody of the accused, presumption shall be drawn. It is further observed that, rebuttal of the presumption shall be on the basis of preponderance of probabilities as is done in civil proceedings. Hence, the Hon'ble Apex Court is very much clear on this point and no doubt in the citations relied on by the learned counsel for the appellant/accused before the trial court in some of the 33 decisions it is observed that mere recovery of the tainted amount does not establish demand, but the Constitutional Bench decision and Larger Bench decision of the Hon'ble Apex Court clarifies this aspect and the decision of the Larger Bench will prevail as observed by the Hon'ble Apex in the case of Rattiram and Others vs State of Madhya Pradesh through Inspector of Police reported in (2012) 4 SCC 516. As such, the burden is on the accused to rebut the said presumption. The evidence discloses that the accused is taking inconsistent and contrary stands.
33. Apart from that, the Hon'ble Apex Court in the case of Girija Prasad (Dead) by L.Rs vs. State of Madhya Pradesh reported in 2007 (7) CC 625, reiterated the said principles once again and observed that, once it is proved that the amount has been received by the accused, the presumption shall be drawn. It is further observed that it would be wholly 34 immaterial whether the said acceptance of amount was for him or for someone else and whether the accused was or was not in a position to oblige the complainant. It is further observed that, whether no evidence was adduced by the accused to rebut the presumption raised under the law and he merely took the defence of total denial and false implication, it is observed that the doctrine of preponderance of probability had no application.
34. Apart from that, the Hon'ble Apex Court in the case of M.Narsinga Rao vs. State of A.P. reported in AIR 2001 SC 318, has observed that it is compulsory and not discretionary to draw a presumption when the prosecution has proved that the accused has received gratification and the court required to draw legal presumption that said gratification was accepted as reward for doing public duty.
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35. In the instant case, all along the accused is setting up a defence that complainant has thrusted the amount in his pocket. It is quite unnatural defence and even in his statement under Section 313 of Cr.P.C., no such defence of thrusting the amount is set up. On the contrary, he admitted that on 27.06.2007, the complainant has approached him and he prepared the genealogical tree, but the complainant insisted to remove the name of his sister which he did not agree and hence, a false case has been lodged. No such explanation was given in the statement recorded under Section 313 of Cr.P.C. On the contrary, under Ex.P7 he has taken a contrary stand stating that on 28.06.2007 complainant approached him and after obtaining necessary information, he was preparing the genealogical tree, at that time, the complainant went outside under the guise of taking tea and he did not return and on 36 02.07.2007, without his knowledge the complainant put the amount in his pocket. This stand immediately taken under Ex.P7 is not inconsonance with his statement under Section 313 of Cr.P.C. and defence in trial. Hence, it is evident that the accused is taking inconsistent and contrary stands. Even in Ex.P7 there is no reference of complainant insisting for removing the name of his sister. Further, it is evident that accused has not led any rebuttal evidence except making formal suggestions. His defence of thursting the amount was denied by P.Ws.1 to 3 and his voluntary statement under Ex.P7 discloses that amount was put in his pocket without his knowledge. These stands are inconsistent and contrary to each other.
36. Even according to the accused, the genealogical tree Ex.D1 was prepared on 27.06.2007 itself, but admittedly, it was in his custody when it 37 was seized. He did not disclose why he was continued to be in possession when the complainant has approached him on 27.06.2007 as well as on 28.06.2007 as per his own case. He could have simply handed over the same and he could have given explanation in Ex.P7 in this regard, but that was not forthcoming. Mere explanation or denial does not amount to rebuttal of the statutory presumption available in favour of the prosecution under Section 20 of the P.C.Act. There are certain minor variances, but they do not affect the merits of the case and are not fatal to the case of the prosecution. Admittedly, the amount was recovered from the custody of the accused as admitted by him. The evidence of P.Ws.2, 3 and 7 is consistent and non-production of voice recorder etc. has no relevancy in this regard. The genealogical tree was all along in the custody of the accused and hence, the contention of the accused that 38 no work was pending with him holds no water. Under these circumstances, the evidence on record clearly establish that the accused has demanded and accepted the illegal gratification being a public servant and received Rs.300/- from the complainant. However, he has not rebutted the said presumption. Hence, his act falls under Sections 7 and 13(1)(d) of the P.C.Act and it is punishable under Section 13(2) of the P.C.Act.
37. The trial court has considered all these aspects and analyzed the oral and documentary evidence in detail. The trial court has answered all the quarries raised by the defence counsel with proper reasons. The trial court has rightly arrived at a conclusion that prosecution has proved the guilt of the accused beyond all reasonable doubt. The judgment of conviction and order of sentence does not suffer from any perversity or illegality so as to call for any 39 interference by this court. Apart from that, the trial court has also imposed reasonable sentence as prescribed under law and the State has also not challenged the same. Under these circumstances, question of interfering with the judgment of conviction and order of sentence does not arise at all. Looking to these facts and circumstances, I constrained to answer point No.1 in the affirmative and point No.2 in the negative. As such, the appeal being devoid of any merits and needs to be dismissed. Accordingly, I proceed to pass the following:
ORDER The criminal appeal is dismissed by confirming the judgment of conviction and order of sentence dated 23.06.2011 passed by the Principal Sessions Judge and Special Judge, Mysuru in Spl.Case No.64/2008.40
The trial court is directed to secure the accused for undergoing remainder part of the sentence and his bail bonds stand cancelled.
Sd/-
JUDGE MBS/-