Sri Krishna Murthy vs State By Karnataka Lokayukta ...
2021 Latest Caselaw 5437 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 4TH DAY OF DECEMBER, 2021

                        BEFORE

     THE HON'BLE MR.JUSTICE K.SOMASHEKAR

       CRIMINAL APPEAL NO. 1315 OF          2011

BETWEEN:
Sri. Krishna Murthy
S/o H.K. Dasappa
Aged 57 years
Assistant Agricultural Officer
Molakalmoor
Chitradurga District.
                                              ...Appellant

(By Sri. H.C. Shivaramu - Advocate)

AND:
State by Karnataka Lokayukta Police
Tumkur
By State Public Prosecutor.
                                            ...Respondent

(By Sri. Venkatesh S. Arabatti - Spl.P.P)

      This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to allow this appeal and set aside the
impugned judgment of conviction and order of sentence
dated 20.12.2011 passed by the II-Addl. District and
Sessions Judge, Tumkur in Spl.C.No.72/2006 and
direct the acquittal of the appellant.
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     This criminal appeal coming on for further
arguments this day, the court delivered the following:

                      JUDGMENT

This is a classic appeal by challenging the

judgment of conviction and order of sentence rendered

by the trial Court in Spl.C.No.72/2006 dated

20.12.2011 convicting the accused for the offence

punishable under Sections 7, 13(1)(d) r/w 13(2) of

Prevention of Corruption Act, 1988. The accused was

sentenced to suffer rigorous imprisonment for three

years and to pay a fine of Rs.5,000/- and rigorous

imprisonment for four years and to pay fine of

Rs.5,000/- with default clause for the offence

punishable under Sections 7 and 13(1)(d) r/w 13(2) of

Prevention of Corruption Act 1988.

2. Whereas learned counsel for the appellant

seeking to consider the grounds as urged in this appeal

and consequently, to set-aside the judgment of

conviction and order of sentence rendered by the trial

Court relating to the aforesaid offences amongst the

grounds urged therein.

3. Heard, learned counsel Sri H.C.Shivaramu for

the appellant and learned Spl.PP Sri Venkatesh

S.Arbatti for respondent - Lokayukta. Perused the

judgment of conviction and order of sentence rendered

by the trial Court in Spl.C.No.72/2006 dated

20.12.2011.

4. The factual matrix of the appeal are as under:

It is transpired in the case of the prosecution that

the accused being the public servant whereby serving as

Taluk Social Welfare Officer in Kunigal Taluk, Tumkur

District and alleging that he demanded a bribe of

Rs.4,000/- from C.W.1 namely Kumar. Based upon his

complaint criminal law was set into motion by recording

the FIR as per Ex.P6. Subsequent to that the

investigating officer conducted pre-trap mahazar as per

Ex.P3 and trap mahazar at Ex.P4. But these mahazars

have been conducted by the investigating officer in the

presence of PW.2, PW.3 and PW.4 and also it bears the

signature of PW.2 in both these mahazars. Ex.P3, the

pre-trap mahazar has been conducted by the

investigating officer in the presence of panch witnesses.

The demonstration mahazar by the investigating

officer was conducted in the presence of PW.2, PW.3

and PW.4. The currency notes i.e., 40 notes of Rs.100/-

denomination have been produced by PW.2 - Kumar

who is a complainant as per Ex.P2 and based upon the

production of currency notes, one of the team members

applied phenolphthalein powder on both the side of

currency notes and also held demonstration in the

presence of panch witness as PWs.3 and 4.

Subsequent to conducting demonstration mahazar

as per Ex.P3, the investigating officer has lead the team

to the office of the accused and after successful raid he

drew the trap mahazar as Ex.P4 and laid the charge

sheet against the accused before the Court having

jurisdiction.

Subsequent to laying of the charge sheet, the

charges were framed against the accused for the

aforesaid offences and the accused has declined the

charges of the offences. Accordingly, plea of the accused

has been recorded.

Subsequent to framing of charge, the prosecution

has let in evidence by subjecting to examination PWs.1

to 10 and got marked Exs.P1 to P12 inclusive of M.O.1

to 10. Subsequent to closure of evidence the accused

was subjected to examination as contemplated under

Section 313 of Cr.P.C. for incriminating evidence

appearing against him and whereby the accused denied

the truth of evidence of prosecution and the same has

been recorded. Subsequently, the accused was called

upon to adduce any defence evidence as contemplated

under Section 233 of Cr.P.C.

Subsequent to closure of evidence, heard the

arguments advanced by the prosecution and the

defence counsel and being convinced by the evidence of

prosecution convicting the accused for the offence

punishable under Sections 7, 13(1)(d) r/w 13(2) of the

Prevention of Corruption Act, 1988. It is this judgment

of conviction which has been challenged under this

appeal by urging various grounds.

5. Whereas learned counsel for the appellant

contends that PW.1 - G.K.Gurani who is the

sanctioning authority and he accorded sanction as per

Ex.P1 and this sanction has been made to prosecute the

case against the accused even having gone through the

materials which are facilitated by the investigating

agency for securing the accorded sanction to prosecute

the case. But PW.1 who is the sanctioning authority

states that he has not seen the alleged incident, how it

took place and how it was narrated even in the pre-trap

mahazar or even the trap mahazar as conducted by the

investigating officer during the course of investigation.

Even the mahazar has been drawn by the investigating

agency in the presence of PWs. 3 and 4 and also got the

signature of PW.2 - Kumar who is the gravamen of the

incident narrated in the complaint at Ex.P2. But PW.2

Kumar who was subjected to examination on the part of

the prosecution, but no document has been produced

by him in support of the allegations made in the

complaint as per Ex.P2 relating to indicating that

certain amount has been sanctioned to him under the

Special Unit Scheme by the Government of Karnataka

introduced under the policy matters, has not been

marked in the evidence during the course of his

evidence on the part of the prosecution. Even for

releasing of the amount and also made an allegation

that the accused had demanded bribe for Rs.4,000/-.

But this allegation made by PW.2 who is the

complainant and even filed a complaint as per Ex.P2 it

is unbelievable and it is only to create the theory in

terms of the allegations made against the accused. But

in fact, it is a serious lapse on the part of the

prosecution and the trial Court has arrived at a

conclusion erroneously that the accused has committed

the alleged offence and more so, the prosecution has

proved the guilt of the accused beyond all reasonable

doubt. Therefore, in this appeal it requires for re-

appreciation of the evidence as where the trial Court

was misdirected the evidence of PW.1 and also equally

misdirected the evidence of PW.2 - Kumar who is the

gravamen of the incident narrated in the complaint at

Ex.P2, if not the accused would be the sufferer, who is a

gravamen of accusation.

6. The second limb of the argument advanced by

the learned counsel for the appellant by relying on the

evidence of PW.3 - K.Narasimhamurthy who is by

avocation as Attender. But he has not stated that he

had worked from 2000 to 2006 as Second Division

Assistant in the office of Excise Superintendent in

Tumkur. Whereas even at a cursory glance of his

evidence that appellant had been paid money i.e., the

bait money by PW.2 - Kumar and accused alleged to

have been received bribe amount and maintained in his

pocket. But there shall be some contrary to the

evidence of PW.2 - Kumar but filed complaint as per

Ex.P2 and also he has subscribed his signature at

Ex.P3 - pre-trap mahazar and also trap mahazar at

Ex.P4 in the presence of PWs.3 and 4. But PW.2 has

stated in his evidence on the part of the prosecution

that the accused is an offender and he was maintaining

the amount even in the drawer of his table and further

the person who has received the money and kept in his

pocket would not thereafter keep it in the table drawer,

if really he has secured it as bribe amount as he would

be cautious in taking care of the same. But in the

instant case, the allegation made against the accused is

that he demanded the bribe amount and received the

bribe amount of M.O.6 - 40 notes of Rs.100/-

denomination each. But the theory set up by the

prosecution even for subjected to examination PW.2-

Kumar who is the gravamen of the incident and he has

filed the complaint as per Ex.P2 and even he has

subscribed his signature to Exs.P3 and P4. Even the

mahazar has been drawn by the investigating officer in

the presence of PWs.3 and 4 but the evidence of the

aforesaid witnesses runs contrary to each other and the

same has not been properly appreciated by the trial

Court but erroneously came to the conclusion even by

exaggeration of amount relating to receipt of bribe to do

the official favour. But this theory of the prosecution is

not fortified by placing consistent and so also

corroborative evidence. Therefore, under this appeal, it

requires re-appreciation of the evidence, if not, there

shall be a miscarriage of justice to the accused who is

the gravamen of the accusation made in Ex.P2 -

complaint and also narrated in Ex.P3 - pre-trap

mahazar and Ex.P4 - trap mahazar said to have been

conducted by the investigating officer during the course

of investigation in the presence of PWs.3 and 4.

7. Lastly, it is contended by the counsel for the

appellant that PW.4 - Rajendra Kumar who was also

examined as panch witness but he has not witnessed

the alleged incident and only says that the hands of the

accused had been washed with sodium carbonate

solution and the same turned into pink color and the

accused had produced the amount from the drawer in

his office and moreover, the amount i.e., M.O.6 is not

stated to have been kept in the table drawer of the

appellant. Therefore, the evidence of PW.4 - Rajendra

Kumar is not supported with the evidence of PWs. 2 and

3 on the part of the prosecution.

8. It is further contended that PW.5 - Nagaraju

has not supported the case of the prosecution and he

has turned around and therefore, his evidence is not

holding any assistance to the case of the prosecution.

But the evidence of PW.6 - Komala who was subjected

to examine on the part of the prosecution but there is

nothing in her evidence as against the appellant/

accused. PW.8 Hemalatha has stated in her evidence

that the amount was found in the table draw of FDA by

name Rangaswamy but nothing worthwhile has been

brought in order to support the evidence of PW.2 who is

the complainant and he has filed Ex.P2 and PWs.3 and

4 are the panch witnesses to Ex.P3 - pre-trap mahazar

and Ex.P4 - trap mahazar has been conducted by PW.9.

She has specifically stated that she does not know who

has kept the money in the drawer table.

9. It is further contended that PW.9 -

J.B.Rangaswamy is an investigating officer who lead the

team but his evidence on the part of the prosecution

has stood seriously challenged and it requires for

appreciation under this appeal, if not, the accused who

is the gravamen of accusation would be the sufferer and

also there shall be miscarriage of justice.

10. PW.10 - Gurusiddappa is also one of the

witness who was secured by the investigating agency to

Ex.P11 - Sketch. But even taking into consideration

the totality of evidence, it would not demonstrate

completely on the part of the prosecution relating to

guilt of accused. But without appreciating the evidence

in a proper perspective manner, the trial Court

erroneously come to the conclusion that the prosecution

has proved the guilt of the accused. Therefore, under

this appeal it requires for consideration of the grounds

as urged by challenging the conviction judgment

rendered by the trial Court relating to an offence under

Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of

Corruption Act, 1988. On all these premises, counsel

for the appellant seeking for intervention as where it

requires for re-appreciation of the evidence and the trial

Court has misdirected the evidence and also

misinterpreted the evidence in toto. In support of his

contention, the counsel for the appellant has placed the

following reliance:

i) 2007 (8) SCC 309 - Ganapathi Sanya Naik Vs. State of Karnataka.

"Prevention of Corruption Act, 1988 - S.13(1)(d) r/w S.13(2) - Acceptance of bribe by public servant - Proof - Trap - According to prosecution appellant Village Accountant demanded bribe money for effecting mutation entries in revenue records - Trap laid - Currency notes smeared with phenolphthalein powder were put on office table of appellant as asked by him and appellant then placed some files on the currency notes - Police Officer waiting outside then rushed in and recovered the notes from the table

- Trial Court held that evidence of pancha witness and complainant with regard to recovery of cash was not believable and that defence version that money had been put under the files on the table surreptitiously without knowledge of appellant appeared more plausible and worthy

of acceptance and accordingly, it acquitted the appellant - But High Court in State's appeal against acquittal convicted the appellant on the finding that complainant's evidence was corroborated by the pancha, an independent witness and that prosecution case could not be doubted merely because the currency notes had not been touched by appellant - High court also refused to accept the defence plea that there was no occasion for demand of money as necessary documents had already been prepared, on the ground that possibility of documents having been prepared in anticipation of receipt of money could not be ruled out - Held, finding of fact arrived at by trial court on appreciation of evidence was a possible view and therefore, High Court in appeal against acquittal was not justified in interfering therewith on ground that a different view was possible."

ii) 2006(3) KCCR 1445 - State of Karnataka vs. K.T.Hanumanthaiah

"Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d) r/w 13(2) - There should be

independent corroboration for proving the case of demand and acceptance of bribe for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.

iii) 2006(3) KCCR 1422 - Manjunath Basappa Basavamurthy vs. State of Karnataka

"PW.5 an independent witness has not played his role as instructed and in the manner as required in law. The evidence of PW.7 remains uncorroborated. Hence, without corroboration, it is not safe to base conviction. Accordingly, the order of conviction set aside. the appeal is allowed, the bail bond stands cancelled."

iv) 2004(2) KCCR 1233 - D.Rajendran Vs. State by Police Inspector, BOI

"Prevention of Corruption Act, 1988 - Sections 7 and 13(1)(d) r/w 13(2) - Evidentiary Jurisprudence

- Corroboration of evidence of complainant by shadow witness is a must. Unless the evidence of the complainant and the shadow witness corroborate with each other it is not safe to convict the accused persons under the Prevention of

Corruption Act for the offence under Sections 7 and 13(1)(d) r/w 13(2) P.C.Act, 1988."

v) 2010(3) KCCR 1851 - State of Karnataka vs. M.Gopalakrishnaian and others

"Prevention of Corruption Act, 1988 - Section 20

- Even to draw a presumption under Section 20 of the Act the prosecution is required to prove that there was demand and acceptance - If the Demand and acceptance for the purpose of official favour is proved by the prosecution beyond the reasonable doubt the burden may shift on the accused the same - However when the initial burden of proving the demand and acceptance is not proved the presumption under Section 20 of the Act does not arise."

vi) Crl.A.No.1087/2011 - Shivalinga Murthy vs. State of Karnataka.

"In the light of the above contentions and on a careful perusal of the record it cannot be said that the prosecution had established its case beyond all reasonable doubt. As in the opinion of this court the several contentions raised by the learned counsel for the appellant would have to be accepted

as regards the infirmities that have not been explained and which the trial court has clearly overlooked."

These are all the authorities which have been

facilitated by the counsel for the appellant submitting

that the observation made in these authorities be

considered. Accordingly, it requires for intervention

relating to the conviction judgment rendered by the trial

Court and consequently, seeking for acquittal of the

accused.

11. Contrary to the arguments advanced by the

learned counsel for the appellant, the learned Spl.P.P -

Sri.Venkatesh S Arbatti for Lokayukta has taken me

through the evidence of PW-2 / Kumar who is a

gravamen of the incident as narrated in his complaint at

Exhibit P2 and similarly, PW-1 / G.K. Gurani,

competent authority who accorded sanction order at

Exhibit P1 to prosecute the case against the accused.

PW-2 Kumar has stated in his evidence that he went to

the Lokayuktha office a week prior to initiation of the

criminal case against the accused by filing a complaint

at Exhibit P2. But PW-9 who is the Investigating Officer

was approached by the complainant and he had briefed

the substance narrated in his complaint at Exhibit P2

that two to three days prior to 18.05.2005, PW-2 had

gone to the office of the Lokayuktha and taking note of

the things narrated by him, but it is probabilise that

PW-9 who is the I.O. has prepared the sodium

carbonate solution in his office in the presence of PW3

and PW4 and MO-8 / shirt of the accused and another

document MO-9 have been seized and these are all the

materials which have been secured by the I.O. who is

examined as PW-9. But criminal law was set into

motion by recording an FIR as per Exhibit P6. It is

based upon the complaint at Exhibit P2 and

subsequently the I.O. has drawn the pre-trap mahazar

as per Exhibit P3 in the presence of PW3 and PW4 and

so also obtained the signature of PW-2 / complainant

and subsequently raid was taken by him and he drew

the Trap mahazar as per Exhibit P4 in the presence of

PW3 and PW4. In the said mahazar also he had

obtained the signature of PW-2 / complainant who

initiated criminal prosecution by filing a complaint as

per Exhibit P2. But the evidence of PW-1 who is the

competent authority who accorded sanction as per

Exhibit P1 to prosecute the case against the accused,

his evidence finds corroborated with the evidence of

PW-2 insofar as the allegation made in his complaint at

Exhibit P2. He has been subjected to examination also

on the part of the prosecution. He has stated in his

evidence that the accused demanded and accepted bribe

marked as MO-6 / 40 currency notes of Rs.100/-

denomination each. PW-3 and PW-4 being panch

witnesses were secured and in their presence, Exhibit

P3 pre-trap mahazar was conducted. After successful

completion of raid, he drew the trap mahazar as per

Exhibit P4 in the presence of panch witnesses PW3 and

PW4 who have supported the case of the prosecution,

which is further corroborated with the evidence of PW-9

who is the I.O. who drew the mahazar and also laid the

charge-sheet against the accused.

12. The prosecution has mainly relied upon the

evidence of PW-2 to PW-4 and PW-9 and they have

spoken in their evidence relating to the allegation made

in the complaint at Exhibit P2 and the prosecution has

facilitated worthwhile evidence relating to consistency of

evidence of PW-1 relating to sanction order at Exhibit

P1 and fulcrum of pre-trap mahazar at Exhibit P3 and

Exhibit P4 / trap mahazar conducted by PW-9 in the

presence of panch witnesses. During the trap mahazar

at Exhibit P4, the I.O. who is examined as PW-9 had

made demonstration by hand wash of the accused with

Sodium Carbonate solution, which turned into pink

colour and in his presence, seized MO-6 / 40 currency

notes of Rs.100/- denomination each, which is

sufficient evidence on the part of the prosecution

relating to demand and acceptance of bribe by the

accused. Even at a cursory glance of the evidence of

PW-2 and PW-3 inclusive of the evidence of PW-4, it

cannot dismantle the evidence of the prosecution as

regards recovery of the bait amount of Rs.4,000/- and

to reconcile with the same. Therefore, the defence

raised on the part of the accused cannot come in the

way to disbelieve the theory of the prosecution to prove

the guilt of the accused. On the face of the prosecution

and the evidence on record that each beneficiary had to

contribute a sum of Rs.5,000/-, even that defence

raised on the part of the accused cannot arise for

consideration. On the other hand, it is the prosecution

which has to discount it as far from the truth and far-

fetched one from the theory set up by the defence.

13. PW-3 namely K. Narasimhamurthy is a

shadow witness secured by PW-9 / I.O. and in his

presence and also in the presence of PW4, pre-trap

mahazar at Exhibit P3 was drawn. Even during that

mahazar, demonstration had been taken by the I.O. by

preparing sodium carbonate solution and hand wash of

the accused if that accused had come into contact with

the bribe amount and washing of their hands with

sodium carbonate solution would turn pink in colour.

This demonstration had been taken place in the office of

PW-9 / I.O. in the presence of PW-2 / complainant and

PW-3 and PW-4 panch witnesses who were secured.

PW-3 is the shadow witness and also in the presence of

PW-4, PW-2 had tendered the currency notes of MO-6 in

the office of PW-9 during the pre-trap mahazar and that

MO-6 had been secured. Even the same has been taken

out from the drawer of the table of the accused and the

same has been counted and also seized under the

mahazar at Exhibit P4. That is, trap mahazar has been

conducted by PW-9 in the presence of PW-3 / shadow

witness and also PW-4 / panch witness who have

subscribed their signatures including signature of

PW-2 / gravamen of the incident. PW-4 has given

similar set of evidence even in conformity with the

evidence of PW-3 who is a shadow witness and mahazar

has been conducted by PW-9 who is the I.O. These are

all the evidence which has been appreciated by the Trial

Court. Therefore, under this appeal, it cannot arise for

intervention in terms of re-appreciation of the evidence

as there was a misdirection and misinterpretation by

the Trial Court. But the accused being a Government

servant, there is no dispute that he was serving as

Taluk Social Welfare Officer in Kunigal Taluk. These are

the observations made by the Trial Court by

appreciating the evidence of PW-2 / complainant as per

his complaint at Exhibit P2 and fulcrum of pre-trap

mahazar at Exhibit P3 and similar fulcrum of Trap

Mahazar at Ex.P4 conducted by the I.O. / PW-9 during

the course of investigation. From all these evidence, it

is made clear that on 29.04.2005 itself, the accused

who is a gravamen of the accusation had issued

cheques to PW-5 and PW-9 who is an I.O. has admitted

in his evidence. Therefore, the ignorance feigned by

PW-2 / complainant cannot be of any consequence to

turn around the theory on the part of the prosecution

which finds place in Exhibit P2. The version of PW-5 in

relation to it cannot be of any consequence. But, the

say of PW-9 that accused had instructed to PW-5 not to

deliver goods, supports the contents of Exhibit P2 of the

complaint and the Trial Court has appreciated the

evidence and even to say having regard to the issuance

of cheque, the fact that the accused had instructed PW-

5 not to deliver the goods with a view to extract money

by way of bribe is proved.

14. These are all the evidence appreciated by the

Trial Court and rightly come to the conclusion that the

prosecution has proved the guilt of the accused beyond

all reasonable doubt. Therefore, it cannot arise for

intervention of the impugned judgment of conviction

rendered by the Trial Court and the appeal be dismissed

being devoid of merits.

15. It is in this context of the contentions taken by

the learned counsel for the appellant by referring to the

evidence of PW-2 who is the complainant at Exhibit P2

and so also the fulcrum of Exhibit P3 / Pre-trap

mahazar and Trap Mahazar at Exhibit P4. PW-2 /

Kumar had been subjected to examination on the part

of the prosecution. By the special component scheme

introduced by the Government and sanctioned relating

to running a petty shop by his wife Komala and his aunt

namely Smt. Gangamma, W/o Chikkaiah in respect of

which the accused having demanded an amount of

Rs.2,500/- for each shop though stated in his evidence,

but that PW-2 / Kumar alleged that he had given an

advance of Rs.1,500/- and told that he would pay

another Rs.4,000/- to accused later. But on

18.05.2005, PW-2 / Kumar had approached the

Lokayuktha P.S. and gone into the office and given a

complaint as per Exhibit P2 and based upon his

complaint, criminal law was set into motion by

recording an FIR. Also, he had subscribed his signature

at Exhibit P2 and he went into the office of the

Lokayuktha and produced 40 currency notes of

Rs.100/- denomination each and the said amount was

counted by PW-3 and applied the phenolphthalein

powder and thereafter hand wash of PW-3 with sodium

carbonate solution turned into pink colour and the

same was seized in a container and sealed, which is

marked as MO-1 and MO-2. Exhibit P3 is the pre-trap

mahazar which has been conducted by PW-9 / I.O. in

his office in the presence of PW-3 / Shadow witness and

also co-panch witness namely PW-4 Rajendra Kumar.

However, PW-9 / I.O. drew the trap mahazar as per

Exhibit P4 in the presence of PW-3 and PW-4 and also

hand wash of the accused with carbonate solution

which turned into pink colour and that solution was

seized in a container. So also, MO-6 / 40 currency

notes were seized of Rs.100/- denomination each. But

in the cross-examination, he has specifically stated that

the I.O. has conducted the mahazar at around 11.45

hours and also the currency notes were noted in the

paper and the complaint and the mahazar in the office

of PW-9 / I.O. at Exhibit P3 of all process relating to the

mahazar has been conducted by him and he has

tendered the currency notes at MO-6 to the accused

and the same was kept in his pocket. Thus, PW-2 has

specifically stated in his cross-examination that

separately he had maintained certain amount in his

personal purse also, but he didn't know the contents

made in the mahazar. But he has denied the

suggestion made relating to counting of currency notes

and also his hand wash with sodium carbonate

solution. PW-2 / Kumar had made him to sit outside

the office in between 2.15 to 4.00 p.m., on 18.05.2005.

Subsequent to arrival of accused to his chamber, then

only he had gone to his office along with PW-4 and in

the chamber of the accused there were two tables and

the amount was kept in the drawer of his table, as

according to the instructions given by the Police

Inspector of Lokayuktha, the accused had taken out the

amount from the drawer at around 6.00 p.m. But this

suggestion made by the defence counsel has been

denied.

16. PW-3 / K. Narasimha Murthy who has been

secured to act as panch witness and in his presence in

the office of PW-9 / I.O. had drawn a pre-trap mahazar

at Exhibit P3 and also taken into consideration that the

process had taken place in the presence of PW-3 and

PW-4 relating to preparation of the sodium carbonate

solution and also if the accused being a Government

servant would come into contact with the currency

notes which were applied with phenolphthalein powder

and then his hands washed with the solution, would

turn into pink colour. Subsequent to drawing a

mahazar at Exhibit P3, that PW-9 / I.O. led the team to

the office of the accused. This PW-3 who accompanied

PW-2 who is a complainant to the office of the accused

and PW-2 had tendered the currency notes / MO-6 and

that amount was received and also kept in a pocket and

thereafter the complainant had come out from the office

and extended signal according to the instructions given

by the Police Inspector to him. Thereafter, PW-2, PW-3

and the team members had entered into the office of the

accused and also had introduced themselves but the

amount was not found in the pocket of the accused but

according to the information, it was found in the drawer

of the table. But hand wash of the accused was made

and the same turned into pink colour and the coloured

solution was seized in a bottle marked as MO-3 and

MO-4. Accordingly, PW-9 / Police Inspector who drew

the mahazar at Exhibit P4 in the presence of PW-3 and

PW-4 panch witnesses and also being Government

servants had been secured by PW-9 to act as panch

witnesses and also drew the mahazar itself at Exhibit P3

/ pre-trap mahazar and Exhibit P4 / Trap mahazar in

the presence of panch witnesses but it requires for

appreciation relating to fulcrum of mahazar.

17. PW-9 / J.B. Rangaswamy who is an I.O. has

been subjected to examination on the part of the

prosecution wherein he on receipt of a complaint at

Exhibit P2 and based upon the complaint made by

PW-2, criminal law was set into motion. Subsequent to

securing PW-3 to PW-4 and also briefing those panch

witnesses in the presence of PW-2 / Kumar to prove the

allegations made in the complaint at Exhibit P2, that

PW-2 / Kumar had produced the currency notes of

Rs.4,000/- denomination of Rs.100/- each and PW-4

had counted the currency notes and also noted the

number of currency notes and thereafter applied

phenolphthalein powder on the currency notes and

thereafter prepared sodium carbonate solution and

made a demonstration in the presence of PW3 and PW4.

That demonstration was held in the presence of the said

panch witnesses saying that if the accused Government

servant comes into contact with the currency notes

applied with phenolphthalein powder and then hand

washed with sodium carbonate solution, the same

would turn into pink in colour. Accordingly, pre-trap

mahazar at Exhibit P3 was drawn and after successful

raid, Exhibit P4 of the trap mahazar was drawn by PW-

9/ I.O. However, there are variations and contradictions

arising in their evidence in respect of fulcrum of

mahazar.

18. The prosecution has relied on the evidence of

PW-2 / Kumar who had filed a complaint at Exhibit P1

and PW-3 and PW-4 panch witnesses were secured.

PW-3 / shadow witness had accompanied PW-2 to the

office of the accused and MO-6 currency notes had been

tendered by the complainant to the accused and that

currency notes were seized in the presence of PW3 and

PW4 and even they have subscribed their signatures

and even obtained the signature of PW-2. But PWs 2, 3

and 4 they are the main witnesses on the part of the

prosecution apart from PW-9 being an I.O. PW-1 who is

a Sanctioning Authority, had accorded sanction as per

Exhibit P1 to prosecute the case against the accused

who being a Government servant. PW-1 who accorded

sanction to prosecute the case, but it is only an

administrative correspondence to accord sanction to

prosecute the case against the Government servant as

under Section 19 of the PC Act, 1988. His evidence

even though on the part of the prosecution has to be

considered, it should be in conformity with the evidence

of PW-3 / shadow witness, PW-4 / co-panch witness

who have been secured by the I.O. / PW-9. It is

specifically contended by the counsel for the appellant

that as on 18.05.2005, the complaint has been filed by

the complainant. PW-2 was subjected to examination

and has given a complaint as per Exhibit P2. But no

work has been pending before the accused Government

servant and there was no demand made as according to

his complaint at Exhibit P2 and even PW-3 and PW-4

had been subjected to examination on the part of the

prosecution to prove the fulcrum of Exhibit P3 / pre-

trap mahazar Exhibit P4 / Trap mahazar. But the

complaint was even reduced into writing and based

upon the complaint at Exhibit P2, criminal law was set

into motion and thereafter, the I.O / PW-9 on

completion of the investigation in entirety, laid the

charge-sheet against the accused. However, it is

relevant to consider the ingredients of Section 7, 13(1)(d)

read with Section 13(2) of the PC Act, 1988, keeping in

view their evidence to arrive at a proper conclusion.

19. In the case of P. Satyanarayana Murthy vs.

DIG and another (2015) 10 SCC 152, the Hon'ble

Supreme Court has held at the footnote and as well as

at paragraphs 22, 23 and 24 of the said judgment, thus:

"Prevention of Corruption Act, 1988 - Ss. 7, 13(1)(d) (i) and (ii) r/w S.13(2) - Illegal gratification - Trap case - Proof of demand - Necessity of, for conviction - Demand not proved as complainant had died before the trial - Evidence of other witnesses not sufficient to prove demand, though recovery proved - Benefit of doubt extended to appellant.

-- Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Ss.7 and 13 of 1988 Act - Conviction reversed."

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 Sections 7 or 13 of the Act would not entail his conviction thereunder.

In the case of State of Punjab vs. Madan Mohan

Lal Verma (2013) 14 SCC 153, the Supreme Court has

held at the footnote and as well as at paragraph 11 of

the said judgment, thus:

"A. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - Ss.20 and 7 - Necessity of showing demand for illegal gratification - Mere recovery of tainted money not enough - Burden on accused to displace the statutory presumption - Evidence of complainant how to be scrutinized.

The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the

amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While 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. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.

The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide: Ram

Prakash Arora v. The State of Punjab AIR 1973 SC 498; T. Subramanian v. The State of T.N., AIR 2006 SC 836; State of Kerala & Anr. v. C.P. Rao, (2011) 6 SCC 450; and Mukut Bihari & Anr. v. State of Rajasthan, (2012) 11 SCC 642)."

20. It is also relevant to refer to the judgment in

the case of Dashrath Singh Chauhan vs. Central

Bureau of Investigation (2019) 17 SCC 509, wherein

the Supreme Court has held at the footnote as well as

paragraphs 30 to 32 of the said judgment, thus:

"Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988, Ss. 7, 13(2) r/w S. 13(1)(d) and S.120-B IPC - Neither charge of conspiracy to demand and accept bribe money proved against appellant, nor acceptance of bribe money on his part proved

- Hence, held, he entitled to acquittal.

30) In such circumstances, there is no evidence to prove that the appellant directly

accepted the money from the Complainant. Since the plea of conspiracy against the appellant and Rajinder Kumar failed, it cannot be held that money (Rs.4000/-) recovered from the possession of Rajinder Kumar was as a fact the bribe money meant for the appellant for holding him guilty for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the PC Act. It is more so when the benefit of such acquittal from the charge of conspiracy was given to Rajinder Kumar but was not given to the appellant.

     21.     In    the    instant        case,       MO-6      /   bribe   of

Rs.4,000/-        consisting     of      40      notes        of   Rs.100/-

denomination was seized from the possession of the

accused and even it is narrated at Exhibit P4 of the trap

mahazar conducted by PW-9 who laid the charge-sheet

against the accused. Even obtained the signature of

PW-2 Kumar and also the signatures of PW3 and PW4.

PW3 / shadow witness and PW-4 / co-panch witness in

their presence, MO-3 / Pre-trap mahazar was drawn in

the office of the I.O. / PW-9. But the prosecution has

failed to prove the factum of acceptance of bribe money

of Rs.4,000/- marked as MO-6 by the accused from the

complainant / PW-1 on 18.05.2005.

In the case of Selvaraj vs. State of Karnataka

(2015) 10 SCC 230, the Hon'ble Supreme Court has

held at the footnote as well as paragraph 17 of the said

judgment, thus:

"A. Prevention of Corruption Act, 1947 - S.5(1)(d) - Bribery - Trap case - Complainant not available for cross-examination - Demand not proved - the allegation of bribe taking should be considered along with other material circumstances - Demand has to be proved by adducing clinching evidence - Recovery of tainted money is not sufficient to convict the accused - There has to be corroboration of testimony of complainant regarding demand of bribe and when the complainant is not available for examination during trial, court has to be cautious while sifting the evidence of other witnesses -

Acceptance of bribe has not been established by adducing cogent evidence either - Acquittal restored.

22. However, in the instant case, Exhibit P3 / pre-

trap mahazar and Exhibit P4 / Trap mahazar were

drawn by PW-9 / I.O. in the presence of PWs 3 and 4,

by making a demonstration and even produced MO-6

currency notes, that is bribe amount produced by PW-2

who has filed the complaint at Exhibit P2. But at a

cursory glance of the evidence of those witnesses on the

part of the prosecution, it is found to be camouflage and

also clouds of doubt. However, having gone through the

authorities facilitated by the counsel for the appellant, it

is found that the reliances are squarely applicable to the

given facts and circumstances of the case on hand

relating to the accused as regards the theory set up for

demand and acceptance of the bait amount of

Rs.4,000/- which is marked as MO-6.

23. PW-9 is the I.O. who laid the charge-sheet

against the accused. But criminal law was set into

motion on receipt of a complaint at Exhibit P2 and

subsequent to registration of the crime by recording an

FIR at Exhibit P6, PW-9 secured the panch witnesses

PW-3 and PW-4 and in their presence, he drew the pre-

trap mahazar as per Exhibit P3 and thereafter, he drew

the trap mahazar as per Exhibit P4 in the presence of

PW-3 and PW-4. The evidence of PW-3 who is the

shadow witness requires to be appreciated in a proper

perspective. But on a close scrutiny of the evidence, it

appears that there is some clouds of doubt. Therefore,

in this appeal, it requires for re-appreciation of the

evidence. If not, certainly there shall be a miscarriage of

justice and accused being the gravamen of the

accusation would be the sufferer. The tainted currency

notes of MO-6 even though number has been noted in

Exhibit P3 of the pre-trap mahazar and also in the trap

mahazar at Exhibit P4, and even having seized MO-6

currency notes under Exhibit P4 of the trap mahazar, it

is an important aspect. But fulcrum of the mahazar

requires to be established by the prosecution without

giving any clouds of doubt. Whereas, Sections 7 and

13(1)(d) of the PC Act, relating to trap cases in terms of

illegal gratification, the ingredients of the aforesaid

offences have to be established by the prosecution in

relation to the demand and acceptance. Despite of

recovery of tainted currency notes, merely because MO-

6 currency notes have been seized by PW-9 in the

presence of PW3 and PW4 by drew a trap mahazar at

Exhibit P4, but the prosecution did not facilitate

worthwhile evidence relating to recovery of tainted MO-6

currency notes. The same has been noticed in the

evidence of PW-3 and PW-4 coupled with the evidence of

PW-9 / I.O. who laid the charge-sheet against the

accused. So far as the proof of demand, it is an

important ingredient of Section 7 of the PC Act, 1988.

The demand must be proved by the prosecution, but in

the instant case, PW-2 who is a complainant has been

subjected to examination in respect of Ex-P2. However,

merely because of recovery of tainted currency notes

MO-6 in the presence of PW-3 and PW-4, it cannot be

held as sufficient evidence to prove the demand made

by the accused and also acceptance of the bait amount

MO-6. Mere acceptance of any amount allegedly by way

of illegal gratification or recovery thereof, dehors the

proof of demand, ipso facto, reiterated, would not be

sufficient to bring home the charge under Ss.7 and 13

of 1988 Act. This issue has been extensively addressed

by the Hon'ble Supreme Court of India in the case of P.

Satyanarayana Murthy vs. DIG and another (2015)

10 SCC 152 (supra).

24. It is well-settled law that demand of illegal

gratification is a sine qua non for constituting offences

under Sections 7 and 13 of the PC Act, 1988. The very

recovery of tainted currency notes is not sufficient to

convict the accused without specific evidence that he

had in fact received bribe from the complainant.

Whereas in the instant case, criminal law was set into

motion on receipt of a complaint at Exhibit P2 made by

PW-2 / Kumar. PW-3 is the shadow witness who

accompanied the complainant, but the burden rests on

the prosecution to displace the statutory presumption

raised under Section 20 of the PC Act, 1988 by bringing

worthwhile evidence to establish with reasonable

probability that money other than illegal remuneration

was accepted by the accused / Government servant as a

motive or reward to forebear to do any official act under

Section 7 of the PC Act, 1988.

25. But at a cursory glance of the evidence of

PW-2, PW-3 and PW-4 and on a close scrutiny of their

evidence, on the standard of proof relating to the

currency notes of corroboration by recovery of tainted

notes divorced from the circumstances under which the

same was recovered, is not sufficient to arrive at a

conclusion when there is no specific corroboration of

the testimony of the complainant regarding bribe.

Therefore, the evidence cannot be relied upon, but

looking into the evidence of those witnesses, on a close

scrutiny relating to pre-trap mahazar, at Exhibit P3 and

trap mahazar at Exhibit P4, it is found that there is

clouds of doubt. When clouds of doubt arises on the

part of the prosecution, the benefit of doubt is always

accrued on the part of the accused alone, which is the

cardinal principle of criminal justice delivery system.

However, the domain is vested with the prosecution to

facilitate worthwhile evidence in order to prove the guilt

of the accused beyond all reasonable doubt. But when

once doubt has arisen in the mind of the court, benefit

of doubt is always accrued on the part of the

prosecution alone. But in the instant case, the

touchstone of preponderance of probability is an

onerous responsibility on the part of the prosecution to

prove the guilt of the accused. But under Section 3 of

the Indian Evidence Act, 1872, the domain is always

vested with the Trial Court to appreciate the evidence

relating to Entrust mahazar, Trap mahazar which were

conducted by the I.O. during the course of investigation.

In the instant case, even though prosecution has

subjected to examination several witnesses, but relied

upon evidence of PW-2 / complainant, PWs 3 and 4

Panch witnesses have been secured and in their

presence, pre-trap mahazar has been drawn by PW-9

and trap mahazar has been drawn as at Exhibit P4.

But the prosecution has not proved the guilt of the

accused by facilitating worthwhile evidence even on the

touchstone of preponderance of probability to arrive at a

conclusion that the accused had demanded bribe MO-6.

In terms of the aforesaid reasons and findings, as

opined that the accused deserves to be acquitted,

accordingly interfered. In view of the aforesaid reasons,

I proceed to pass the following:

ORDER

The appeal preferred by the appellant / accused

under Section 374(2) Cr.P.C. is hereby allowed.

Consequently, the judgment of conviction and order of

sentence rendered by the Trial Court in

Spl.C.No.72/2006 dated 20.12.2011 is hereby set aside.

Consequence upon setting aside the conviction

judgment, the accused is hereby acquitted for the

offences punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the PC Act, 1988. If the accused had

executed any bail bond, the same shall stand cancelled.

Sd/-

JUDGE

DKB/KS