K Ramashetty S/O Chikkanna Shetty vs The State Of Karnataka
2021 Latest Caselaw 5890 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 10TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200039/2015

BETWEEN:

K. RAMASHETTY
S/O CHIKKANNA SHETTY
AGE: 57 YEARS
OCC: BLOCK EDUCATION OFFICER
R/O DEVADURGA
DIST. RAICHUR

(APPELLANT IS AGED ABOUT 55 YEARS.
HOWEVER, IN THE CAUSE TITLE OF THE
JUDGMENT IT IS WRONGLY SHOWN)
                                          ...APPELLANT


          (BY SRI. S.S.MAMADAPUR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
R/BY SPECIAL PP
HIGH COURT OF KARNATAKA
KALABURGI
(THROUGH PSI OF LOKAYUKTA
P.S., RAICHUR)
                                        ...RESPONDENT


          (BY SRI. SUBHASH MALLAPUR, SPL.PP)
                              2




     THIS CRL.A FILED U/SEC.374(2) OF CR.P.C, BY THE
APPELLANT PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 13.03.2015
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, RAICHUR IN SPECIAL CASE No.10/2010 AND ACQUIT
THE APPELLANT/ACCUSED AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29.11.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:


                       JUDGMENT

This appeal is filed challenging the judgment of

conviction and sentence dated 13.03.2015 passed in

Spl.Case No.10/2010 on the file of II Additional District

and Sessions Judge, Raichur for the offences punishable

under Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 ('the PC Act' for short)

for a substantive sentence for a period of one year for the

offence punishable under Section 13(1) (d) read with

Section 13(2) of PC Act with a fine of Rs.25,000/- and for

a period of six months with a fine of Rs.25,000/- for the

offence punishable under Section 7 of the PC Act.

2. In nutshell, the case of the prosecution is that

the complainant had lodged a complaint with the

Lokayukta police alleging that he was appointed as a

Assistant Teacher in the Education Department in the year

2002 and he discharging his duties at Arakera Government

High School. It is alleged that as per the orders issued by

the Deputy Director of Public Instructions, Raichur on

13.06.2007, he was deputed for higher studies to complete

his B.Ed. course at Manasa Gangotri Open University,

Mysuru with certain conditions. That on 16.04.2008, he

has participated in the programme of 'Chinnara Angala'

that is the programme arranged for drop out children from

the school. In the meantime, the complainant received a

message that he has to attend a programme of public

relation (Samparka Karyakram) at S.R.K. B.Ed. College,

Raichur. But there was a programme of Chinnara Angala

in his school upto 23.04.2008, he has not attended the

public relation programme. After the completion of the

said programme, he traveled in the night on 23.04.2008 as

he shall attend the Chinnara Angala programme at Manasa

Gangotri University, Mysuru on 24.04.2008. Therefore, he

was unable to attend the alleged public contact

programme. Thereafter, he had received a message that

he shall attend the public contact programme without fail.

Therefore, the complainant returned from Mysuru to

Raichur on 25.04.2008 to attend the programme. He also

submitted a letter through registered post to his Head

Master requesting accord permission to attend the public

relation programme. Inspite of that, the Head Master of

the Arakera High School did not consider his request and

submitted a report to the BEO stating that the complainant

was unauthorisedly absent for his duties and salary has

been held up. It is further alleged that on 29.05.2008,

when the complainant attended his duties, the Head

Master refused to take him to the duty and directed him

orally to accord permission from the BEO (accused herein).

Therefore, the complainant went to the office of BEO on

30.05.2008 and requested him to take him on duty and

also to release his held up salary. In this regard, the

accused responded that he is going to suspend him for his

unauthorized absence. Thereafter, in the afternoon, the

complainant went inside the office of BEO and once again

requested him for the same. For that, the accused

demanded a bribe of his two months salary. In this

regard, the complainant orally informed the same to the

Lokayukta police and on the same day, the police have

gave him a small tape recorder to record the conversation.

After getting the tape recorder, once again the

complainant visited the office of the BEO on 01.06.2008

and requested the BEO to take him to the duty or in the

alternative, he may be deputed to the other school from

Arakera and also requested to release his held up salary.

For both the purpose the accused demanded an amount of

Rs.5,000/- each. The complainant was not willing to pay

any bribe and hence, he lodged the written complaint and

returned the small tape recorder in which he recorded the

conversation took place between him and the accused.

3. Based on the said complaint, the case got

registered and the first information report was also

registered. Thereafter, the Lokayukta police secured the

panch witnesses and did the formalities for trapping the

accused and collected the amount of Rs.10,000/- from the

complainant, entrustment mahazar was conducted and

thereafter sent PW1-complainant and PW2 - shadow

witness and after acceptance of bait money, trap mahazar

was conducted and thereafter investigation was completed

and charge sheet was filed for the aforesaid offences. The

accused was secured before the Trial Court and he did not

plead guilty and claimed for trial. Hence, the prosecution

in order to substantiate its case, examined PW1 to PW7

and got marked the documents as Exs.P1 to P32. On the

other hand, the accused did not step into the witness box

but examined one witness as DW1 and the documents at

Ex.D1 to D4 are confronted. The prosecution also relied

upon the material objects at M.O.1 to M.O.11. The

accused was also subjected to 313 statement and

thereafter heard the matter and convicted the accused

considering the material on record. Hence, the present

appeal is filed.

4. The main contention of the learned counsel

appearing for the appellant/accused in this appeal is that

the Trial Court passed the judgment of conviction and

sentence which is contrary to the prosecution evidence and

committed serious error and the evidence has not been

considered in the right perspective. The evidence of

complainant is not duly corroborated by the shadow

witness who has failed to speak about the demand and

acceptance and also contended that it is a settled position

of law that the demand of illegal gratification is sine quo

non to constitute the offence punishable under Section 7 of

the PC Act and mere recovery of the currency notes from

the possession of the accused cannot constitute the

offence punishable under Section 7 of the PC Act, unless it

is proved beyond reasonable doubt. It is contended that

local officials have made the plan to implicate the accused

since they were having enmity. The role of the

investigating officer should be impartial and the same is

missing in the case on hand and handing over the tape

recorder which amounts to collection of evidence without

registering the case also cannot be accepted.

5. The counsel also vehemently contend that it is

the case of the prosecution that the accused has received

the amount from his right hand and his right hand dipped

in one glass water solution which turns to pink colour and

other hand did not turn to pink colour and FSL repot is

contrary that in both the glass water solution are positive.

When such being the case, the Trial Court ought not to

have accepted the prosecution case. The counsel also

admits that PW1 in the cross-examination categorically

deposed that PW2 who is a shadow witness was standing

outside and he was unable to see anything and hence, the

shadow witness evidence also cannot be accepted. The

shadow witness who has examined as PW2 also deposed

that he only heard the conversation and not witnessed the

receipt of the amount. When such being the facts and

circumstances, the Trial Court ought not to have accepted

the evidence of PW1 and PW2. The prosecution also relied

upon another witness as PW5, the other panch witness and

he also not fully supported the case of the prosecution.

Having considered the evidence of PW1 to PW5, the same

are not inspired the confidence of the Court. The counsel

also brought to the notice of this Court the Ex.P9-slip

wherein date is mentioned as 31.05.2008 and according to

the trap, it was on 01.06.2008 and hence, the said

document also creates doubt about the prosecution case.

The said slip contains the instructions to his sub-ordinate

to take him on duty. The witness also says that the trap

was held in the house of the accused. But it is the specific

case of the defence that PW1 came and kept the money in

the drawer in the house of the accused and the same was

witnessed by DW1 and he questioned the same. The

accused also given explanation in 313 statement. PW4

says that Ex.P9-slip was given on 31.05.2008 and he has

not been treated as hostile and cross-examined. Ex.P24

mahazar i.e., cassette panchanama was signed on

01.06.2008 and the Trial Court failed to take note of

particularly the FSL report which contains both the hands

wash turns to pink colour and no explanation on the part

of the prosecution. The counsel would also contend that

PW1 not attended as directed and he only not followed the

directions and in order to cover up his irregularity, a false

complaint is given and there is an inherent defect in the

case of the prosecution and evidence also inconsistent and

inspite of the same, the Trial Court has committed an error

in convicting the accused.

6. Per contra, the counsel appearing for the

Lokayukta would vehemently contend that Ex.P9 is in the

hand writing of the accused and the same is not disputed

and only the date is mentioned as 31.05.2008 and the said

date is working day and the same is explained in the trap

mahahar itself when the slip was handed over to the

Lokayukta police and spoken regarding discrepancy of date

mentioning as 31.05.2008 and explained by the

prosecution. PW2 who is the shadow witness categorically

says that he went near the window and heard the demand

but nothing is elicited in the cross-examination of PW2

regarding demand made by the accused. PW1 also

categorically deposed that PW2 is standing at the distance

near the window at the house of the accused and there is

no inconsistency in the evidence of PW1 and PW2 as

contended by the prosecution. The only discrepancy found

is that in FSL report regarding both the hand wash was

positive in nature but witnesses who have been examined

has categorically deposes that the accused has received

the amount by his right hand and the right hand wash

turns to pink colour and left hand wash solution was not

turns to pink colour. The said discrepancy cannot take

away the case of the prosecution since other material

available on record corroborates the case of the

prosecution. The said FSL report may be by mistake. The

trap mahazar which is marked as Ex.P11 is very clear in

respect of Ex.P9 as well as seizure and the counsel would

contend that PW4 was won over by the accused and

hence, he was treated as hostile. PW4 categorically

admits that on 31.05.2008, the complainant has not

attended and discrepancies found in the evidence of

prosecution shall not go to the very root of the prosecution

case. The accused himself has not been examined and

instead, the accused examined one person as DW1 and his

evidence is not helpful to the case of the accused. The

Trial Court having considered the material on record,

passed a well reasoned order in convicting the accused for

the aforesaid offences. Hence, no grounds are made out

to interfere with the findings of the Trial Court.

7. In the reply to the arguments of the learned

Special Public Prosecutor, the appellant counsel submits

that PW1 admitted that PW2 was not able to see handing

over the money but he only says that he heard the

conversion. But the evidence of the prosecution did not

corroborates for having paid the money to the accused and

it is a specific defence of the accused that PW1 came and

kept the money in the drawer and in this regard DW1 is

also examined before the Trial Court and hence, it requires

interference of this Court.

8. Having heard the arguments of learned counsel

appearing for the appellant/accused and learned Special

Public Prosecutor appearing for the respondent/Lokayukta

and also on perusal of the material available on record, the

points that would arise for consideration of this Court are:

(i) Whether the Trial Court has committed an error in convicting the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and whether it requires an interference of this Court?

(ii) What order?

Point No.(i):

9. Having considered the grounds urged in the

appeal memo and also the oral submission of the learned

counsel appearing for the appellant/accused and the

learned Special Public Prosecutor appearing for the

respondent/Lokayukta, this Court has to re-appreciate the

materials available on record as this appeal is a statutory

appeal against the order of conviction. The case of the

prosecution in nutshell that the accused demanded an

amount of Rs.5,000/- each i.e., for release of salary as

well as posting to some other school on deputation as

requested by PW1. He also accepted the money and trap

was conducted. Now, this Court has to examine whether

there was any demand and acceptance and whether the

evidence of prosecution inspires the confidence of this

Court to confirm the conviction or to acquit the appellant.

10. Now, this Court has to in nutshell re-appreciate

the evidence available on record. PW1 who is the

complainant, in his evidence he reiterated regarding the

demand and acceptance and drawing of entrustment

mahazar and about the trap mahazar and also he says that

on demand, he went and informed to the Lokayukta police

and Lokayukta police in turn gave a tape recorder to

record the conversion. Accordingly, he went and recorded

the conversation and gave the complaint. By giving the

complaint, gave the amount of Rs.10,000/- to the

Lokayukta police. The formalities of entrustment mahazar

was conducted in the office of Lokayukta and thereafter he

went along with PW2. It is his evidence that he went to

the house of the accused at around 8.30 p.m. and PW2

was standing near the window. The accused demanded

the money and he handed over the bait amount removing

the same from his shirt pocket by his right hand and the

accused also received the same by his right hand.

Immediately, the accused having received the money,

wrote a slip and asked him to hand over the same to the

Head Master and he came out with the said slip and gave

the signal. PW2 who was standing near the window, was

unable to see what had happened inside the house of the

accused but he was able to hear the conversation. It is

also his evidence that thereafter drawn the trap mahazar

and he says that his right hand wash turn to the pink

colour and left hand did not turn to pink colour. He was

subjected to the cross-examination. In the cross-

examination, he admits that he tendered the application

but the same was not accepted by CAEO. But he told PW1

already to get the permission from BEO. But he has not

handed over the leave application to the Lokayukta police.

He admits that on 31.05.2008 and on 01.06.2008, he had

been to Lokayukta office. He went to Lokayukta police

station at around 3.30 p.m. and thereafter panchas were

secured. After the entrustment mahazar, they left to

Raichur at around 5.30 p.m. In two jeeps, 10 to 12

persons were left the Raichur and they reached Devadurga

at around 8.00 p.m. He admits that there are steps to go

to the first floor. He has not signed the trap mahazar. It is

suggested that based on the report of accused, the earlier

BEO was suspended and the same was denied. It is

suggested that one Eshwarappa instigated him to lodge

the complaint against this accused and the same was

denied. It is suggested that when he went inside the

house of the accused, he was not there and he went to

take bath and the same was denied. It is suggested that

at that time DW1 was present and the same was denied.

It is suggested that he kept the money in the drawer and

came out and the same also denied. It is suggested that

he kept the money in the drawer and thereafter, he did not

contact the police and hence, he did not sign the trap

mahazar and the same was denied. In the cross-

examination, he admits that PW4 was the Assistant BEO

and he was having the power to sanction the leave or to

refuse the same and admits that the file was not pending

with the accused.

11. The other witness is PW2 who is a witness to

the entrustment mahazar and also to the trap mahazar. In

his evidence, he reiterates regarding entrustment mahazar

and thereafter, he went and he says that he accompanied

the complainant and another panch also accompanied the

police. He was instructed to hear the conversation and to

witness the handing over the money to the accused. He

went along with the complainant and the complainant went

inside the house of the accused and he was standing near

the window. The accused demanded the money. The

complainant came out and signaled as instructed and

immediately police and other panchas rushed to the house

of the accused and complainant also accompanied them.

On enquiry, the complainant explained that money is in

the drawer. He himself counted the money and tallied the

note numbers. In terms of Ex.P10, it was tallied. The

accused right hand was subjected to wash and it turns pink

colour and left hand did not turn to pink colour. He was

subjected to the cross-examination. In the cross-

examination, it is elicited that this accused was in the

upstairs and there was 4-5 houses and only two persons

can access the building in the staircase and he was at the

distance of six steps. The complainant came out from the

house and he also went inside the house and till the

complainant came out from the house of the accused, he

did not go inside the house of the accused and he did not

know whether the bait money was in the drawer. The

complainant only took out the money from the drawer and

handed over to him and police have drawn the mahazar.

It is suggested that he has not signed the trap mahazar

and the same was denied.

12. The other material witness is PW5. PW5 in his

evidence also deposed regarding the entrustment mahazar

and thereafter went to the house of the accused which is

situated in the first floor in the building and PW1 told that

the accused had received the amount and kept it in the

table drawer and hand wash of the right hand of the

accused turns to pink colour and the amount of

Rs.10,000/- which was kept in the drawer was seized and

identifies the same and this witness was turned hostile

regarding entrustment mahazar and hence, took the

permission to cross-examine him. In the cross-

examination, he admits that during the entrustment

mahazar, photographs were taken as per Exs.P3 to P8 and

his presence can be seen in the said photographs. He also

admits that PW1 told that he gave the money to the

accused and the accused received the same by his right

hand and also he attested the document at Ex.P10. He

also admits that PW1 told that after receiving the bribe

amount, the accused has given a slip to him. He was

subjected to the cross-examination. In the cross-

examination, he says that on 01.06.2008, he was asked to

go to the Lokaykta office at 3.00 p.m., at that time PW2

was already there and he was not knowing PW1 and PW2

earlier and only on introduction, he identified both of them.

There was no other women in the two jeeps when they

returned from Raichur to Devalapur. The accused was

staying in the first floor in the said building. The owner of

the building was staying in the ground floor. PW1 and 2

had initially gone inside the house of the accused. The

Lokayukta police had taken the photographs of both in

their office as well as in the house of accused. But he does

not remember the name of the person who took the

photographs. Hand wash of PW2 had taken by the

Lokayukta police in a glass. In the house of the accused,

at the first instance, his right hand wash was taken and

the same was collected in the bottle and seized the same.

He does not remember that what the police Inspector done

to the hand wash taken in respect of the left hand of the

accused. It is suggested that he is falsely deposing before

the Court and the same was denied. It is suggested that

the accused did not demand and accept any bribe from

PW1 and he was falsely deposing and the same was

denied.

13. PW3 who gave the sanction in terms of Ex.P14

is examined and in the cross examination, he admits that

he had issued the said order as administrative order. He

also admits that the Deputy Secretary is not having the

power to give sanction. He also says that based on the

orders of Minister, the same was issued.

14. The other witness is PW4 who is also the

Assistant Education Officer in Arkera deposed that the

accused is working as BEO and the complainant was

unauthorised absent from 24.04.2008 and also he has

received the representation from PW1 sent under speed

post seeking permission to take B.Ed examination as an

external candidate. He also deposed that on 03.05.2008,

he met the accused with his covering letter and Ex.P15.

The accused made an endorsement on his covering letter

to the effect that without obtaining the sanction, the

complainant was unauthorisedly absent and to withhold his

salary. The same is marked as Ex.P16. The attendance

register is also marked as Ex.P17. In the cross

examination, it is elicited that PW1 did not attend the

school on 30.05.2008 and also admits that on 29.05.2008,

after marking his attendance at about 12.30 or 1.00 p.m

PW1 met him in his office and told that he is reporting his

duty and told him that he should take prior permission

from the BEO before reporting to the duty. That on

31.05.2008, PW1 met him in his school when he visited

there and showed Ex.P9. Then he told him that he should

give a joining report enclosing Ex.P9 and thereafter, he did

not submit any joining report along with Ex.P9.

15. The other witness is PW6, Junior Engineer, he

had drawn the scene of trap sketch in terms of Ex.P21.

16. PW7 is the investigating officer who registered

the case and submitted the FIR and also secured panch

witnesses and did the formalities of entrustment mahazar

and thereafter he also says that they went to the office of

the accused and mahazar was drawn and also he sent

empty cassette to record the voice of the accused and the

same was seized by drawing panchanama and also

obtained sketch in terms of Ex.P21 and also identifies his

signature at Ex.P11 - recovery panchanama. He was

subjected to cross examination. But in the cross

examination, he admits that he has not obtained

acknowledgment from PW1 when the voice recorder was

given to him. It is suggested that Ex.P11 does not bear

the signature of PW1 and the signature shown is not that

of PW1. He admits that entrustment mahazar and

recovery mahazar are material evidence in a trap case. He

admits that FSL examiner has given opinion stating that

the presence of phenolphthalein is detected in both right

and left finger washes of AGO. It is suggested that he has

not taken hand wash of the accused at the time of trap

and the same was denied. He admits that in Exs.P12 and

13 photographs, PW1 is not seen.

17. Having considered the oral and documentary

evidence and also in keeping the contentions of the

appellant counsel and also the State and on re-

appreciation of material on record, it discloses that the

complainant has given the complaint in terms of Ex.P1

wherein the allegation is made to release his salary and

depute him to some other school, the accused demanded

Rs.5,000/- each. PW1 is also in the complaint

categorically stated that when he met the Lokayukta

police, they have given the tape recorder to record the

conversation and accordingly, he recorded the same and

handed over the same to them and also paid Rs.10,000/-

to the Lokayukta police and Lokayukta police secured the

panch witnesses and drawn the entrustment mahazar in

the presence of PW2 and PW5 and also trap was

conducted. No doubt, in the cross examination of PW1, it

is elicited that PW2 not witnessed handing over the bait

money to the accused but he was standing near the

window. It is also important to note that PW2 also

reiterates that he heard the demand but not witnessed

having paid the amount to the accused by PW1. Hence,

there is no discrepancy with regard to the same. But PW2

says that Lokayukta police instructed him to observe the

demand and acceptance. It is the evidence of PW1 and

PW2 that when the hands of the accused was subjected to

wash, the hand wash solution of the right hand was turned

to pink colour and the left hand was not turned to the pink

colour. The evidences of all the witnesses of prosecution,

very same answer was given and no doubt, in the cross

examination of PW7-IO it is elicited that in the FSL report,

both the hand wash turns to pink colour and it is positive.

There is discrepancy with regard to the hand wash of both

the hands. Whether the same goes to the very root of the

case is the question before the Court.

18. It is the case of the prosecution that the salary

was not paid to PW1 and he was not permitted to report to

the duty and no doubt, PW4 says that on 29.05.2208, the

PW1 came and signed the attendance, he was told to

approach the BEO and get the permission. The fact that he

was unauthorised absent is not in dispute. It has to be

noted that it is elicited from the mouth of PW4 that in

terms of an endorsement made by the accused on the

covering letter which is marked as Ex.P16, accused had

passed an order to stop the salary of PW1 and hence, PW4

says to get the permission from the BEO and accordingly,

he went and met the accused. It is also important to note

that he not only requested the accused for release of

salary and but also requested for deputation and hence, he

demanded for Rs.5,000/- each. It has to be noted that

Ex.P9 is the relevant document wherein the accused had

made an endorsement stating that "pay him salary and

take him to the duty". But PW4 says that on 31.05.2008

itself he came with that document but he did not enclose

joining report along with Ex.P9. But it is the case of the

prosecution that Ex.P9 was given on the date of trap and

not on 31.05.2008 and hence, the counsel appearing for

the appellant mainly relies upon the date mentioned on

Ex.P9 as 31.05.2008. It is important to note that in the

trap mahazar itself it is specifically mentioned that PW1

went to the house of the accused and while giving the slip

at Ex.P9, he has mentioned the previous date since the

prosecution has explained the same and the same is

evident in the trap mahazar and hence, the very

contention of the appellant cannot be accepted and the

evidence of PW4 cannot be accepted that he had appeared

on 31.05.2008 itself along with Ex.P9.

19. The fact that an endorsement was made in

terms of Ex.P16 stating that not to release his salary and

the fact that in terms of Ex.P9-slip, directed to pay him

salary and take him to the duty is not disputed by the

accused. If really PW1 has not approached the accused,

the question of giving Ex.P9 which is in the hand writing of

the accused do not arise. I have already pointed out that

Ex.P9 is not in dispute and mentioning the date will not

goes to the very root of the case as contended by the

appellant counsel. It is also important to note that PW2

accompanied with PW1 who is a shadow witness. No doubt

that both PW1 and PW2 says that PW2 did not enter along

with PW1 inside the house of the accused. But it is the

specific evidence of PW2 that he heard the demand when

he was standing near the window. PW1 also categorically

states that he was standing near the window and there is

no contra evidence between PW1 and PW2. Hence, their

evidence cannot be disbelieved. But the fact that amount

was recovered from the accused is not in dispute but the

accused in 313 statement would contend that PW1 came

and kept the money in the drawer. It is suggested that

through him got it removed the amount and thereafter

both the hands of the accused was subjected to wash but

all the prosecution evidences denies the same. But it is

their case that the accused having accepted the money

kept the money in the drawer but, the accused relies upon

the evidence of DW1 claiming that he was a owner and he

was in the house of the accused when PW1 went to the

house of the accused. In order to substantiate the same,

there is no corroborative evidence and also the accused

has not explained regarding his hand wash turned to pink

colour. But no doubt, the prosecution witness says

categorically that only the right hand wash was turned to

pink colour but FSL report shows that both the hand wash

turned to pink colour. The same will not goes to the very

root of the case.

20. I have already pointed out that there was an

endorsement not to release the salary and subsequently,

when PW1 met the accused, he gave the slip which is in

his hand writing i.e., Ex.P9 giving instructions to release

the salary and take him on duty. For having ordered not

to release the salary and for the subsequent order to

release the salary, no other correspondence was taken

place in the office of the accused and the office of the Head

Master in which PW1 was working and there cannot be two

orders without any correspondence and hence, the Court

can draw an inference stating that only after accepting the

bribe amount, the accused gave the slip in terms of Ex.P9

and nothing is elicited from the mouth of PW1 and PW2

regarding recovery and no doubt, PW1 admits that he has

not signed the mahazar and his signature is not obtained.

But PW7 categorically deposed that he obtained the

signature of PW1 and the said discrepancy also not take

away the case of the prosecution. The accused not

explained what made him to pass orders as per Ex.P16 as

well as Ex.P9.

21. The evidence of PW2 and PW5 is consistent

and no doubt, PW5 was cross-examined particularly by the

Public Prosecutor appearing for the Lokayukta with regard

to the drawing of entrustment panchanama is concerned,

but in the cross-examination, he categorically admitted the

drawing of panchanama and entrustment of money. In the

cross-examination of PW5, an attempt is made that no

recovery was made at the instance of the accused. But

PW5 in the cross-examination deposed that after claiming

a few steps there was a landing and thereafter again steps

towards the first floor. Hence, it is clear that PW5 also

accompanied with the police and it is also elicited by the

PW5 that the police had taken the photographs both in

their office as well as in the house of the accused but he

does not remember the name of the person who took the

photographs and nothing worth is elicited in the cross-

examination of PW5. hence, the evidence of PW1, PW2,

PW5 and PW7 corroborates with each other regarding the

demand and acceptance. The FSL report which is also got

marked before the Trial Court i.e., Ex.P31 also clearly

discloses that the conversation between the accused and

also PW1 which reveals that the speeches said to be of

K.Ramashetty recorded in micro-cassette marked as Article

No.1 are similar to the sample speeches recorded in micro-

cassette marked as Article No.2 and Ex.P31 is not

disputed. Article No.1 contains conversation and speeches

of K.Ramashetty and PW1 and total duration of audio data

found in the micro-cassette was 218 seconds. Hence, it is

clear that the conversation was taken place between PW1

and the accused regarding demand. I have already pointed

out that there was a recovery from the accused and mere

discrepancy in the FSL report that turning both the hands

wash into the pink colour will not goes to the very root of

the case of the prosecution. The discrepancies are bound

to occur but the same will not goes to the very root of the

case. Hence, over all consideration of the evidences

available on record, I have already pointed out that there

was an order not to release the salary and subsequently an

order was passed to release the salary and the police also

proved the fact that Ex.P9 belongs to the accused and

recovery also made and PW1, PW2 and PW5 evidences

corroborates the case of the prosecution apart from the

evidence of PW7. No doubt, the contention that PW4 was

not treated as hostile but PW4 admits that accused came

and shown Ex.P9. But the same is not seized from PW4

and hence, much credence cannot be given to the

evidence of PW4 as he is a Assistant Education Officer and

the accused is a BEO. PW4 is the sub-ordinate to the

accused, hence, more credence cannot be given to the

evidence of PW4 in order to comes to other conclusion as

contended by the appellant counsel that the prosecution

has not proved the case against the appellant herein

cannot be accepted. Hence, I do not find any materials to

comes to other conclusion and to reverse the finding of the

Trial Court and hence, I do not find any merit in the

appeal.

Point No.2:

22. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SAN