The State Of Karnataka vs Srikant Basappa Hugar
2021 Latest Caselaw 3253 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 31ST DAY OF AUGUST, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL NO.2943 OF 2012

BETWEEN
THE STATE OF KARNATAKA
THROUGH LOKAYUKTA POLICE, GADAG.
REPRESENTED BY
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
                                              ... APPELLANT

(BY SRI. SANTOSH B MALAGOUDAR, ADVOCATE)

AND
SRIKANT BASAPPA HUGAR,
AGE: MAJOR,
OCC: ASSISTANT TRAFFIC INSPECTOR,
NWKRTC, BAGALKOT, NOW AT GADAG.
                                            ...RESPONDENT

(BY SRI. K L PATIL, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED U/SEC. 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO THE APPELLANT TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 24TH MAY 2012 PASSED IN SPL.SVC.C.C.No.5/2006 ON
THE FILE OF THE COURT OF THE DISTRICT & SESSIONS JUDGE,
GADAG AND CONVICT THE ACCUSED FOR THE CHARGED
OFFENCES.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.08.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

The Special Lokayukta Police has filed this appeal

under Section 378(1) and (3) of Cr.P.C., challenging the

judgment of acquittal passed by the District and Sessions

Judge, Gadag in Spl.SVC.C.C.No.5/2006 dated 24.05.2012

and prayed for allowing the appeal by convicting the

accused.

2. For the sake of convenience, parties herein are

referred with original rankings occupied by them before

the Trial Court.

3. The brief facts leading to the case are that the

accused was working as Assistant Traffic Inspector in

NWKRTC, Gadag Depot and the complainant-Basavaraj

was working as a conductor in NKSRTC Depot at Gadag.

That on 13.02.2006, at morning hours, the complainant

went outside for his personal work along with his reliance

mobile and thereafter he kept his mobile in the shop of

Manjunath Kukanoor and went to his duties and on the

same day, the accused checked his bus and found

everything correct. Thereafter, the accused asked the

mobile to the complainant but the complainant reported

that he is not carrying mobile. It is alleged that then the

accused forced the complainant to get his mobile from any

other person and as such, the complainant went to the

nearby shop and took his mobile and given it to the

accused. Thereafter, the accused seized the mobile stating

that the complainant has used the mobile when he was on

duty and during evening hours, when complainant

requested the accused to give back his mobile, the

accused refused his request. It is also alleged that on

15.02.2006 accused asked the complainant through his

colleague Hugar to meet him in a hotel at Mundaragi and

when complainant met him, accused asked him to give a

new mobile and threatened him that if a new mobile is not

given, he will issue memo and dismiss the complainant

from service. The complainant was not willing to give a

new mobile phone to the accused and hence, he lodged a

complaint to Lokayukta police. On the basis of the

complaint, a crime was registered in Gadag Lokayukta PS

Crime No.2/2006 against the accused under Section 7,

13(1)(d) read with Section 13(2) of Prevention of

Corruption Act, 1988 (for short "the Act") and trap was

arranged on 16.02.2006. After drawing entrustment

mahazar in Gadag Lokayukta office, they ascertained that

the accused is in head office at Hubli and went there and

around 5.00 p.m., and at 5.30 p.m., the accused was

trapped red handedly while demanding and accepting the

bribe amount of Rs.2,500/-. Ultimately the trap mahazar

was also drawn by the investigating officer and after

completing the investigation and obtaining sanction, the

investigating officer submitted the charge sheet.

4. The accused was enlarged on bail in between

and he appeared before the learned Sessions Judge after

taking cognizance. The accusation was read over and

explained to the accused and he denied the accusation.

The prosecution examined in all 12 witnesses as PW1 to

PW12 and relied on 16 documents marked at Ex.P1 to

Ex.P16 and sixteen material objects were also marked to

prove the guilt of the accused. After conclusion of evidence

of the prosecution, the statement of the accused under

Section 313 of Cr.P.C., was recorded to enable the accused

to explain incriminating evidence appearing against him.

But the case of the accused is of total denial. He did not

choose to lead any defence evidence but has filed his

written explanation denying the case of the prosecution.

5. After having heard the arguments and

perusing the records, the learned Sessions Judge has

framed the following points for consideration:

1. Whether the accused was a public servant as on 13.02.2006?

2. Did prosecution obtain valid sanction order for subjecting the accused to prosecution?

3. Whether the prosecution has proved beyond all reasonable doubt that on 13.02.2006, the accused being the public servant working as Traffic Inspector, NWKRTC, Gadag Depot demanded the new Nokia Mobile phone and accepted illegal gratification of Rs.2,500/- from the complainant for showing official

favour to him viz., for returning his mobile phone and not issuing memo against the complainant and thereby committed an offence punishable U/S 7 of the Prevention of Corruption Act?

4. Has the prosecution further proved beyond all reasonable doubt that the accused being the public servant working as Traffic Inspector, NWKRTC, Gadag Depot committed the offence of misconduct by corrupting or illegal means obtained for himself illegal gratification of Rs.2,500/- from the complainant on 13.02.2006 in his office for showing official favour to him viz., returning his mobile phone and not issuing memo against the complainant and thereby committed an offence punishable under Section 13(1)(d) R/W Sec. 13(2) of Prevention of Corruption Act?

5. Whether the defence of the accused is true and probable?

6. What order regarding disposal of material objects?

6. Thereafter, by judgment dated 24.05.2012 the

learned Sessions Judge has answered point Nos.1, 2 and 5

in affirmative and Point Nos. 3 and 4 in negative and

acquitted the accused. Being aggrieved by this judgment

of acquittal the State through Lokayukta police filed this

appeal.

7. Heard the arguments advanced by the learned

counsel for appellant and the learned counsel for

respondent-accused. Perused the records of the Trial Court

in detail.

8. The learned counsel for appellant would

contend that the complainant and shadow witnesses have

supported the case of the prosecution and again it is

corroborated by the investigating officer and other panchas

and though all the witnesses have categorically deposed in

favour of the prosecution, the learned Sessions Judge has

erred in giving benefit of doubt to the accused by

acquitting him. He would contend that the evidence of the

complainant and shadow witnesses establish the demand

and acceptance on the part of the accused and amount

was also recovered from the custody of the accused. He

would also contend that the records disclose that accused

did not issue any memo to the complainant and no legal

steps were taken after checking the bus and the driver of

the bus has also supported the case of the prosecution.

Hence, he would contend that there is sufficient material

evidence as against the accused and the Sessions Judge

has erred in acquitting the accused. Hence, he would seek

for setting aside the impugned judgment and sought for

convicting the accused.

9. On the contrary, the learned counsel for

respondent would contend that in fact the complainant did

not support the demand as it was a third party information

alleged to be through one Hugar. He further contended

that the amount was not recovered from the custody of

the accused but it was spread over on the road. He would

also contend that the evidence of PW2-shadow witness,

does not support the demand and acceptance and there is

no material evidence regarding conversation. He would

also contend that the accused had issued a memo and the

evidence is inconsistent and contrary. He would also

contend that the cross-examination of PW7 does disclose

improvement and hence, considering the conduct of the

complainant, the Trial Court is justified in acquitting the

accused by extending the benefit of doubt. Hence, he

would seek for dismissal of the appeal by confirming the

judgment of acquittal.

10. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration.

"Whether the Trial Court has erred in acquitting the accused and whether the judgment of acquittal suffers from illegality and perversity, so as to call for interference?"

11. It is the case of the prosecution that the

accused on 13.02.2006 checked the bus of complainant

wherein the complainant was working as a conductor and

all the documents were found to be correct. He alleged

that then the accused demanded mobile of the

complainant and the complainant reported that he did not

carry his mobile and kept it in a tea shop. Then the

accused got the mobile through the complainant and then

threatened him that the complainant is using mobile on

duty. It is also alleged that on 15.02.2006 the accused,

through his colleague Hugar, asked the complainant to

meet him in a hotel at Mundargi. It is alleged that the

accused demanded a new mobile from the complainant

there. It is alleged that as the complainant was reluctant,

he lodged a complaint on 16.02.2006 with Lokayukta

Police. Then entrustment mahazar was drawn and other

formalities were completed in Gagag Lokayukta office.

12. In the instant case, the complainant is

examined as PW1 and shadow witness is examined as

PW2. These two witnesses are material witnesses. The

complainant in his examination-in-chief has reiterated the

complaint averments. He has also asserted that, through

his colleague Hugar, accused sent a word to meet him at

Mundargi in a hotel. The said Hugar is examined as PW6,

but it is interesting to note here that why the complainant

was asked to meet the accused through a third person to

contact him and if he was interested, he would have

contacted him directly. PW1 further deposed that in

Mundargi, when he met the accused there was demand by

the accused for a new mobile phone and he was

threatened that he will be dismissed from service if he

does not get a new mobile. At the first instance, it is to be

noted here that the accused is not a disciplinary authority

to take any action against the complainant. The Divisional

Controller is the disciplinary authority and he can only

initiate enquiry but nothing more. Further, his evidence

discloses that they all went to Central Office in Gokul Road,

Hubli, wherein it is alleged that the accused had visited

and at 5.20 p.m., the accused came out of the office and

was proceeding towards his staff and seeing the

complainant, the accused called him and asked about the

bribe amount and it is alleged that he handed over the

bribe amount and asked him to return his mobile. But at

the first instance, it is to be noted here that the allegations

were that the accused was demanding a new mobile and

not bribe amount. Why the complainant has offered bribe

is not at all forthcoming. Further, the amount was not

recovered from the person of the accused and the

evidence of this witness discloses that seeing the

Lokayukta office rushing towards him the accused threw

currency notes and he has deposed regarding hand wash

of the accused etc. He has also deposed that Panchanama

was drawn and then the accused was brought to Gadag

but there is no explanation as to why the panchanama was

not drawn in Central Office itself, in whose premises the

trap was held. Nothing prevented the investigation officer

when he had trapped and taken hand wash, he could have

drawn the mahazar there itself but he returned to Gadag

Lokayukta office, which is situated at a distance of 50 km

from there and there he drawn the mahazar up to 10.00

p.m., which creates a doubt regarding the conduct of the

investigation agency.

13. In his evidence this witness has deposed that

initially the bus was checked and subsequently when bus

moved, it stopped because of break down on the way and

there again accused came and demanded mobile. If at all

the accused was interested in demanding mobile, he would

have demanded it at the first instance itself, but that was

not the case. It is evident that the Central Office is located

in Gokul Road, Hubli and on the other side KSRTC Rural

Depot is in existence. He admitted that they did not go into

Central Office. It is important to note here that the

complainant contended that he kept mobile in a tea shop

and he brought it and gave it to accused as he was not

carrying mobile along with him. The complainant was

residing in Shivaling Nagar, the bus stopped at Shivaling

Nagar as it was last stop. The house of the complainant is

also situated in Shivalinga Nagar. Thus, there is no

explanation as to what was the need for the complainant

to carry mobile phone and keep it in a tea shop of CW6 for

charging. This conduct of the complainant appears to be

suspicious. The duty time is from 9.00 a.m. to 9.00 p.m.

and under such circumstances, there was no need for the

complainant to carry mobile and keep it in a tea shop, as

carrying mobile on duty itself was prohibited then. In this

regard, the evidence given by PW7-driver of the bus also

does not inspire the confidence of the Court.

14. PW2/Renappa Buradi is a shadow witness. In

his examination-in-chief also he has deposed as per the

case of the prosecution and his cross-examination reveals

that though he accompanied the complainant, he was not

present nearby the complainant when alleged demand of

bribe was made. Admittedly, this witness did not overhear

the demand and acceptance.

15. The shadow witness has accompanied the

complainant only to overhear the conversation and to see

the demand and acceptance but that was not done and

PW2 claimed that he was not there when there was alleged

demand. Hence, the evidence of PW2 shadow witness does

not inspire confidence of the Court and it do not

corroborate the evidence of PW1 regarding demand and

acceptance.

16. PW3 is a second pancha and his evidence is

relevant regarding entrustment mahazar and subsequent

to alleged trap. But regarding material aspect of demand

and acceptance, he is not a witness. The evidence of PW8

wherein it is alleged that the complainant had kept his

mobile disclose that his shop is situated at a distance of

½ km from the house of the complainant. When the house

of the complainant is at a distance of ½ km from the shop

there was no need to him to keep his mobile in a shop and

he would have kept it in his house itself. Further, as per

the complaint, check was conducted at last stop of

Shivaling Nagar at 10.15 a.m. It is also alleged that at that

time, after checking, there was demand for production of

mobile and then it was secured. But the evidence of PW8

discloses that the mobile was collected by complainant at

10.00 a.m., itself. Hence, the evidence is inconsistent in

this regard. Hence, prima facie it is evident that the

complainant was carrying mobile on duty and now he is

putting forward an after thought story regarding demand.

17. Further, as per the case of the prosecution,

when the trap was held, one Thuppad was present in the

car of the accused, who is examined as PW9. According to

him, on 17.02.2006 he and accused went to Hubli and he

was sitting inside the car and accused went inside the head

office and when he returned and about to sit in the car, the

complainant came there and took the accused. However,

he denied demand and acceptance. To that extent only, he

was treated as hostile. Further, according to the

prosecution, trap was held on 16.02.2006 but the evidence

of PW9 disclose that it was on 17.02.2006. But the

prosecution has not treated him hostile regarding this

aspect. The date is inconsistent and his evidence disclose

that the complainant did handover the money to the

accused but accused did not accept it and pushed the

money by two hands and in the meanwhile Lokayukta

police rushed there and taken hand wash of the accused.

Though he was cross-examined in this regard, nothing was

elicited and there is no evidence to show that he is giving a

false statement in this regard. His evidence is fatal to the

prosecution as he denied the demand and acceptance and

further claimed that the incident has taken place on

17.02.2006 but as per the case of the prosecution it was

on 16.02.2006. Hence, his evidence also does not

corroborate the evidence of complainant regarding

demand.

18. PW12 is the investigating officer and he

deposed regarding investigation, drawing entrustment

mahazar, trap etc. He only deposed that after entrustment

panchanama, they washed their hands cleanly but such

statement was not given by PW1 and PW2 or PW3. He has

deposed regarding apprehending the accused after passing

signal, but his evidence disclose that they were standing

across the road and it is admitted that there was heavy

traffic on Gokul road as it also leads to Airport. In that

event, it is hard to accept that in a fraction of seconds,

they rushed to the spot and apprehended the accused,

before he could sit in his car. The evidence discloses that

suddenly they hold his hands and hand wash was taken.

Admittedly, amount was not found in the custody of the

accused. The evidence of PW12 discloses that mahazar

was drawn in Gadag. When hand wash was taken in

KSRTC Hubli Central Office premises, why the mahazar

was drawn in Gadag Lokayukta office is not at all

forthcoming and there is no explanation from this witness.

Further, motive is all along alleged in respect of mobile,

which was illegally taken by the accused, but no attempt

has been made to recover the said mobile. Further, the

evidence on record discloses that the complainant is in the

habit of lodging complaints. The statement given by

accused as per Ex.P4 clearly establishes that immediately

he has given statement denying demand and acceptance

and it is again supported by the evidence of PW9. The

evidence discloses that the complainant did thrust amount

in the hands of the accused, but accused pushed it away.

Further, the evidence of shadow witness does not support

the case of demand and acceptance and the alleged

demand is through third party information. Hence, the

entire case of the prosecution is based on surmises and

does not inspire confidence regarding demand and

acceptance. In this context, learned counsel for respondent

placed his reliance on a decision of the Hon'ble Apex Court

in the case of P. Satyanarayana Murthy v. Dist.

Inspector of Police and another reported in AIR 2015

SC 3549, wherein it is clearly held that proof of demand

and acceptance is essential. Said principle is again

reiterated in the decision of the Hon'ble Apex Court in the

case of State of Kerala and another v. C. P. Rao.,

reported in AIR 2012 SCW 2879 relied by the learned

counsel for respondent. He has further placed reliance on

the decision of the Hon'ble Apex Court in the case of M. R.

Purushotham v. State of Karnataka reported in AIR

2015 SC (Criminal) 139 and in the case of Muralidhar

alias Gidda and another v. State of Karnataka

reported in AIR 2014 SC 2200. The said principles are

directly applicable to the facts and circumstances of the

case in hand. The learned counsel placed reliance on a

decision of the Hon'ble Apex Court in the case of Mahavir

Singh v. State of Madhya Pradesh reported in AIR

2016 SC 5231 wherein the Hon'ble Apex Court has dealt

with the powers of the Appellate Court. Further, it is held

that when two conclusions are possible based on evidence

available on record, it is improper on the part of the

Appellate Court to interfere with the findings of the Trial

Court. In para No.12, the Hon'ble Apex Court has further

observed that, once the Trial Court, by cogent reasons

acquitted the accused, then requirement of his innocence

place more burden on the Appellate Court while dealing

with the appeal. The said principle is directly applicable to

the case in hand and in the instant case, the evidence falls

short of proving guilt of the accused. Further, at no stretch

of imagination it can be said that the view taken by the

Trial Court is said to be erroneous so as to interfere with

the same. Even, the view of the Appellate Court is not in

favour of the prosecution looking to the facts and

circumstances of the case in hand. Under these

circumstances, the evidence on record clearly establishes

that the prosecution has utterly failed to bring home the

guilt of the accused beyond all reasonable doubt. The Trial

Court, after appreciating the oral and documentary

evidence in detail, by giving cogent reasons, has acquitted

the accused. Under these circumstances, the said

judgment does not call for any interference, as it is based

on just reasons. Accordingly, I answer the point under

consideration in the negative and proceed to pass the

following:

ORDER

The appeal is dismissed.

The judgment of acquittal passed by the District and Sessions Judge, Gadag in Spl.SVC.C.C.No.5/2006 dated 24.05.2012 is hereby confirmed.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

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