Mallikarjun S/O. Holabasappa ... vs State Of Karnataka
2021 Latest Caselaw 6164 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

 DATED THIS THE 15TH DAY OF DECEMBER, 2021

                         BEFORE

        THE HON'BLE MRS.JUSTICE M.G.UMA

                   CRL.A.2844/2012
BETWEEN :

SHRI MALLIKARJUN S/O HOLABASAPPA ZULPI,
AGE : 32 YEARS, OCC: SERVICE,
R/O BASAV NILAYA, JAYA NAGAR,
MUDHOL, DIST: BAGALKOT.
                                            ... APPELLANT
(BY SRI R.G.PATIL, AND SRI RAMP.GHORPADE, ADVTS.)

AND :

STATE OF KARNATAKA,
BY LOKAYUKTA POLICE, BAGALKOT,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
                                          ... RESPONDENT
(BY SRI ANIL KALE, SPECIAL P.P.)

      THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING THIS COURT TO SER
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 10.09.2012, PASSED BY THE LEARNED
SPECIAL JUDGE, BAGALKOT IN SPECIAL CASE NO.97/2009 AND
ON PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE
ORDER DATED 10.09.2012 RESPECTIVELY, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.11.2021,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                    2




                         : JUDGMENT :

The appellant/accused is before this Court

seeking to set aside the impugned judgment of

conviction and order of sentence dated 10.09.2012

passed in Spl.Case.No.97/2009 on the file of learned

District and Sessions Judge, Bagalkot ("the Trial

Court" for short), whereunder the appellant is

convicted for the offence punishable under Section 7

of the Prevention of Corruption Act, 1988 ("PC.Act" for

short), was sentenced to undergo simple

imprisonment for two years and to pay fine of

Rs.2,000/- and in default to pay fine to undergo

simple imprisonment for a period of three months.

Similarly he was convicted for the offence punishable

under Section 13(1)(d) read with section 13(2) of PC

Act and sentenced to undergo simple imprisonment for

a period of two years and to pay a fine of Rs.2,000/-

and in default to pay fine to undergo simple

imprisonment for a period of three months.

     2.     Brief   facts    of       the   case   are    that,   the

informant    who     is     an     agriculturist     lodged       first

information as per Ex.P.27 with Lokayukta Police,

Bagalkot alleging that after the death of his father the

informant and his uncle effected partition in respect of

the family properties, submitted an application before

the Tahasildar, Mudhol for issuance of PT-Sheet for

demarcation of the boundaries. The accused was

working as Second Division Surveyor in the office of

the Tahasildar, Mudhol, said to have demanded illegal

gratification of Rs.1,600/- to show the official favour

i.e., to survey the land, to demarcate the boundaries

and to issue the PT-Sheet. Since the informant was

not willing to pay the illegal gratification, he requested

Lokayukta Police to register the case and to initiate

legal action against the accused.

3. Lokayukta Police registered Crime

No.9/2008, an entrustment panchanama was drawn in

the presence of two independent witnesses, the bribe

amount to be tendered to the accused was entrusted

to the informant, after the same was smeared with

phenolphthalein powder. The informant and the

shadow witness were asked to meet the accused and

to enquire about the pending work. Informant was

asked to tender the amount entrusted to him if the

accused demands illegal gratification. The shadow

witness was directed to observe the conduct of the

accused while accompanying the informant. It is the

further contention of the prosecution that both the

informant and the shadow witness met the accused in

his office on 15.10.2008. The accused again

demanded the illegal gratification. When the informant

tendered the phenolphthalein powder smeared

currency notes, he accepted the same and thereby he

committed the offence as alleged.

4. It is stated that on receiving the signal from

the informant, Lokayukta Police along with another

pancha and other officials came to the spot, hand

wash and pant pocket wash of the accused turned into

pink color prima facie showing the presence of

phenolphthalein powder and the tainted money was

recovered from the possession of the accused. The

accused was asked to give his explanation about the

tainted money which was found in his possession.

Accordingly, he has given his explanation as per

Ex.P.28, which is apparently false. Therefore, it is the

contention of the prosecution that the accused

demanded and accepted the illegal gratification for

discharge his official duty and thereby committed

misconduct being a public servant for the offence

punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of PC.Act.

5. The accused appeared before the Trial

Court and pleaded not guilty for the charges leveled

against him. The prosecution examined PWs.1 to 15,

got marked Exs.P.1 to 43 and identified MOs.1 to 11 in

support of its contention. The accused got marked

Exs.D.1 and D.2 while cross-examining PW.1. He has

denied all the incriminating materials available on

record in his statement recorded under Section 313 of

Cr.P.C, but has not chosen to lead his evidence in

support of his defence. The Trial Court after taking

into consideration on all these materials on record

came to the conclusion that the prosecution is

successful in proving the guilty of the accused beyond

the reasonable doubt. Accordingly, the impugned

judgment of conviction and order of sentence was

passed.

6. Being aggrieved by the same, the accused

is before this Court seeking to set aside the impugned

judgment of conviction and order of sentence passed

by the Trial Court and to acquit him for the offences

alleged.

7. Learned counsel for the appellant has not

addressed his argument in-spite of giving sufficient

opportunity. Even though learned counsel for the

respondent has addressed his argument, the same

was restricted to mentioning the rank of the witnesses

examined before the Trial Court, documents exhibited

and the material objects identified. Apart from that the

learned counsel was unable to draw the attention of

the Court to the relevant portions of the evidence or

the material documents in support of the prosecution.

8. Perused the materials including the Trial

Court Records and the impugned judgment of

conviction and order of sentence, in the light of the

grounds urged by the appellant in the memorandum of

appeal.

9. The point that would arise for consideration

of this Court is as follows:

Whether the impugned judgment of conviction and order of sentence dated 01.09.2012 passed in Spl.Case No.97/2009 on the file of the Trial Court is liable to be interfered with by this Court?

10. My answer to the above point is in the

'negative' for the following:

: REASONS :

11. It is the specific contention of the

prosecution that the accused is a public servant

working as Second Division Surveyor in the offence of

the Tahasildar, Mudhol (Survey Section). Ex.P.27 is

the first information lodged by the informant-PW.2. He

has specifically stated that his father was owning the

agriculture lands and the same were being enjoyed by

his father and his uncle. After death of his father, an

application for mutation and demarcation of the

boundaries was submitted. As per the partition that

was entered into between the informant and his uncle,

they have submitted an application for issuance of PT-

Sheet with the office of Tahasildar. On the basis of the

application, the surveyors had come to the spot and

had surveyed the land. After about two days, the

informant went and met the accused who was working

as Second Division Surveyor and requested for

issuance of PT-Sheet/site sketch. The accused

demanded illegal gratification of Rs.1,600/- and

therefore he has lodged the first information

requesting the Lokayukta Police to register the case

and to initiate legal action.

12. The informant was examined as PW.2

before the Trial Court. Witness specifically stated

regarding the pendency of his work with the accused

and demand for illegal gratification of Rs.1,600/- by

him to do the official work i.e., issuance of PT-

Sheet/site sketch and fully corroborated the first

information and case of the prosecution by stating

regarding the entrustment panchanama, meeting the

accused in his office along with the shadow witness,

demand for illegal gratification by the accused and

tendering the entrusted currency notes, acceptance of

the same by the accused and keeping it in his pant

pocket, giving the signal to the Investigating Officer

who came to the spot along with second pancha and

other officials and trapping the accused. He also spoke

about the procedure that was adopted by the

Investigating Officer while drawing the entrustment

panchanama and the trap panchanama. Witness

identified all the material objects relied on by the

prosecution.

13. The witness was cross-examined at length

by the learned counsel for the accused, it is suggested

to the witness that on 18.09.2008, he had submitted

an application and he had paid the fee on 20.09.2008.

These suggestions were admitted by the witnesses.

Witness stated that he had met the accused for the

first time on 14.10.2008 and Mr.Pujari and Mr.Dongre

have visited his land for survey. Witness pleaded his

ignorance regarding the exact date of their visit.

Witness specifically stated that the said Pujari and

Dongre, after surveying his land informed that the PT-

Sheet will be given to the accused, from whom he can

collect the same. Witness stated that when the

accused was asked about such PT-Sheet, he

demanded Rs.1,600/-. Witness also stated that on

15.10.2008 that is after trapping of the accused,

PT.Sheet was issued to him and his signature might

have obtained. There is searching cross-examination

to this witness, but he has withstood such cross-

examination.

14. It is pertinent to note that it is specifically

suggested to the witness that he himself thrust the

currency notes i.e., Rs.1,600/- with the accused by

asking him to pay the same to the Dongre and Pujari

who have surveyed the land. The suggestion was

specifically denied by the witness.

15. PW.1 is the shadow witness, who is a

witness to the entrustment panchanama and the trap

panchanama. This witness is a public servant working

as First Division Assistant in Rehabilitation and

Reconstruction, Upper Krishna Project, Bagalkot. This

witness has deposed in detail regarding, he visiting

the Lokayukta office as he was summoned by the

Inspector, drawing of entrustment panchanama,

conducting various procedure thereunder, instructing

the informant to go and meet the accused and to ask

about the pending work and tendering the amount

entrusted to him, if there was demand by the accused.

Witness also stated that he was instructed by the

Investigating Officer to accompany the informant and

to observe the behavior of the accused. Witness stated

that, accordingly he and the informant went and met

the accused in his office. The accused demanded

illegal gratification of Rs.1,600/-, accordingly the

informant tendered the phenolphthalein powder

smeared currency notes which were accepted by the

accused, counted with both the hands and kept it in

his pant pocket. The informant went out of the

chamber and gave signal to the Investigating Officer.

Immediately the Investigating Officer along with

second pancha and other staff came to the spot. Both

the hands of the accused were dipped separately into

the sodium carbonate solution, which turned into pink

colour. The tainted money was in the custody of the

accused and he took out the same from the pant

pocket and produced before the Investigating Officer,

those currency notes were the same currency notes

which were entrusted to the informant under

entrustment panchanama. The pocket portion of the

pant where the tainted money was kept by accused

was dipped into the sodium carbonate solution. The

said solution also turned into light pink colour. The

accused has given an explanation in writing as per

Ex.P.28. But the same was false. A trap panchanama

was drawn. Witness also identified the accused as well

as the material objects. He also identified his

signatures found on the document.

16. This witness was also cross-examined at

length by learned counsel for the accused. Witness

admitted the suggestion that on 15.10.2008, the

Investigating Officer had drawn a rough sketch in the

offence of the accused and the witness had signed the

same, but denied the suggestion that, when he

accompanied the PWD Engineer to the spot on

02.02.2009 he had carried the copy of the said rough

sketch. Witness denied the suggestion that he had

stated before the Police that he was standing outside

the chamber of the accused and only after receiving

the signal went inside, which is marked as Ex.D.1. It is

specifically asked that Dongre and Pujari i.e., the

surveyors have been stated that they have not

prepared the PT.Sheet, but witness stated that they

have informed that the PT.Sheet is ready. Witness

stated that about half an hour after trap of the

accused said Dongre and Pujari have come to the

spot. The evidence deposed by the witness in his

chief-examination are denied by the learned counsel

for the accused during cross-examination by

suggesting that he is deposing falsely. But all these

suggestion were denied by witness. It is suggested to

the witness that since he is a Government Servant he

was threatened by Lokayukta police. In-spite of

searching cross-examination nothing has been elicited

from this witness as well, to disbelieve his version or

to contradict the case made out by the prosecution.

17. PW.5 is another material witness examined

on behalf of the prosecution. He was also a survey

supervisor in survey section in Tahasildar Office at

Mudhol. Witness stated that on the date on which the

accused was trapped, the accused produced the key

register, attendance book and general register.

Lokayukt Police have summoned Dongre and Pujari.

Dongre produced the file relating to the informant

before the Investigating Officer, Xerox copies of the

file were taken and certified before seizing the same

which are as per Exs.P.3 to 7. Witness stated that the

PT.Sheet was prepared on 30.10.2008.

     18.    PW.7     is    the       surveyor   working      in

Tahasildar's   office.    The    witness   stated    that   the

accused was working as a Case Worker. He stated that

on 15.10.2008 he was asked to visit the Tahasildar's

office immediately. Accordingly, he along with Dongre

came to the office. Witness identified Ex.P.7 as the

same are the certified copies of the documents

relating to the informant. During cross-examination

witness stated that PT.Sheet was prepared on

15.10.2008 but the same was not given to the

accused Witness specifically stated that after

preparation of the PT.Sheet, the same will have to be

given to the case worker i.e., the accused.

19. PW.9 is the Tahasildar, Mudhol Taluk.

Witness stated that accused was working as Second

Division Surveyor. His duty includes issuance of 11E

sketch and copy of PT.Sheet. Witness stated that on

the date of trap, the work of issuance of PT.Sheet to

the informant was pending with the accused. During

the course of cross examination witness admitted that

it was Mr.Pujari and Mr.Dogre who have surveyed the

land. Witness admitted that it was they who have to

prepare the PT.Sheet and should be given to the

surveyor. The case worker i.e., the accused has to

verify the said P.T.Sheet and thereafter the private

surveyor will prepare the copy of the PT.Sheet and will

hand it over to the accused for signature. In turn the

accused has to sign the document and place before

the Tahasildar for his signature. Witness pleaded his

ignorance that the said Pujari and Dongre have not

prepared the PT.Sheet.

20. PW.14 is the sanctioning authority, he

being the Commissioner of Survey Settlement from

July 2007 to January 2010. Witness stated that he was

requested to accord sanction to prosecute the

accused. The Investigating Officer submitted all the

relevant documents, he has considered all those

documents and accorded sanction as per Ex.P.38.

Witness stated that he is the appointing, removing and

disciplinary authority for the accused. During cross-

examination witness admitted the suggestion that

Ex.P.6 and 7 were given to the private surveyors Sri

Dongre and Sri Pujari respectively. Witness also stated

that the private surveyors have to prepare the draft

sketch and submit it to the office of the

Superintendent who in turn to hand over the same to

the office of Surveyor and thereafter the same will be

approved by the Superintendent. Witness admitted

that on the date of incident, the PT.Sheet was not

prepared. But volunteers that the accused has not

furnished initial PT.sheet and therefore it was not

possible for the licenced surveyor to prepare the draft

sketch.

21. PW.15 is the Investigating Officer who

deposed in detail regarding registration of FIR after

receipt of the first information, drawing of entrustment

and trap panchanama procedure adopted during such

panchanamas, recovery of the tainted money from the

accused, receiving of the explanation from him as per

Ex.P.28, recording of the statements of various

witnesses and filing of the charge sheet. The witness

denied all the suggestions that were put during cross-

examination that he is deposing falsely.

22. The accused denied all the incriminating

materials available on record in his statement

recorded under Section 313 of Cr.P.C. He stated that

he was not given sufficient opportunity to give his

explanation. Witness admitted that MO.9 is his pant

worn at the time of incident. He also admitted that

Exs.P.3 to 7 are the certified copies of the documents

which were certified after getting the originals from

the custody of the accused by Dongre and Pujari.

While answering question No.60, witness specifically

submitted that the accused had given written

explanation as per Ex.P.28. He also admitted that

Exs.P.3 to 7 are the documents which were in his

custody and produced during trap.

23. The written version was given by the

accused stating that the informant had submitted an

application for 11E sketch in respect of R.S.No.205/1

and R.S.No.486/2 and at that time he was working as

case worker, it was his duty to issue 11E sketch and

also to submit the application before the Supervisor

who in turn will forward the application to the private

surveyor. The Private Surveyor will prepare the

PT.Sheet and produce before the case worker i.e.,

accused himself. Subsequently, the case worker will

place before the supervisor who in turn will place it

before the Tahasildar. Subsequently, the same will be

returned to the case worker i.e., the accused himself

who in turn has to issue the sketch to the party. The

accused stated that the informant was insisting him to

send the private surveyor for surveying the land and

issue of 11E sketch and PT.Sheet. It is stated that the

informant was abusing him that he is getting salary

from the government but he is not doing any work.

Accordingly, a false complaint was filed. Accused

stated that he himself written Ex.P.28 in a hurry as he

was in tension. Accused stated that apart from the

tainted money of Rs.1,600/-, a sum of Rs.2,570/- was

also recovered from his custody by the Investigating

Officer. Accused stated that the said amount was

collected from the public towards fees for surveying.

The said amount should have been deposited to the

office. The accused stated that he never demanded

and accepted the illegal gratification and that due to

ill-will money was thrust into his hand asking him to

pay to Pujari and Dongre.

24. Ex.P.28 is the explanation given by the

accused stating that he is working as Second Division

Surveyor in the offence of the Tahasildar at Mudhol

and he was trapped on 15.10.2008. The amount in

question was given by the informant asking him to pay

the same to the Pujari and Dongre.

25. The evidence of the prosecution witness if

perused in the light of the oral evidence and the

documents that were placed before the Court and the

contention taken by the prosecution in respect of

allegations made against the accused, it is clear that

there is no dispute regarding the accused working as a

Case Worker in his capacity as the Second Division

Surveyor in the office of the Tahasildar, Mudhol. It is

also not in dispute that the informant had submitted

an application for issuance of 11E sketch and PT.Sheet

and the informant had in-fact approached the accused

insisting him to issue those documents without any

delay. It is also admitted that on the basis of the

application, the informant had already paid the

required fees and the private surveyor i.e., Dongre

and Pujari were deputed for surveying the land in

question. Accordingly, both surveyors have visited the

land concerned and surveyed the same. Issuance of

PT.Sheet was pending and file was lying with the

accused. Admittedly, PT.Sheet was issued to the

informant after the trap of the accused. The

explanation submitted by the informant which is

admitted by him discloses that, the accused even

admits that the tainted money was in his possession.

Even though the accused contends that the amount

was thrust in his hands by the informant asking him to

pay the same to the private surveyors i.e., Pujari and

Dogre, there is absolutely no explanation by the

accused as to how the tainted money was found in his

pant pocket. None of the documents that were relied

on by the prosecution were controverted by the

accused even though he has given a lengthy written

version, after recording his statement under section

313 of Cr.P.C. It is pertinent to note that the accused

who has chosen to file his written version which runs

into several pages has not chosen to step into the

witness box and tender himself for cross-examination,

for the reasons best known to him.

26. When the prosecution is successful in

proving the demand and acceptance of the illegal

gratification, and the accused admits that he was in

possession of the tainted money and the same was

recovered by the Investigating Officer under the trap

panchanama, the presumption under Section 20 of the

PC.Act comes into operation and it is for the accused

to rebut the said presumption. Even though all the

material witnesses were cross-examined at length by

the learned counsel for the accused, nothing has been

elicited from them to rebut the legal presumption

under Section 20 of PC.Act. The accused has also not

stepped into the witness box to rebut the presumption

nor any materials were placed before the Court in that

regard.

27. The materials that are placed before the

Court are sufficient to form an opinion that the

prosecution is successful in proving the guilt of the

accused beyond reasonable doubt. The defence taken

by the accused that the informant thrust the tainted

money in his hands by asking him to pay the same to

the private surveyors is not probabilized. Presumption

under Section 20 of the PC Act is also not rebutted.

Under such circumstances, the accused is liable to be

convicted for the above said offences.

28. I have gone through the impugned

judgment of conviction and order of sentence passed

by the Trial Court. The Trial Court has taken into

consideration all these materials on record and arrived

at a right conclusion in convicting the accused. Hence,

I do not find any reasons to interfere with the same.

29. In view of the discussion held above, I

answer the above point in the 'negative' and

accordingly the appeal is hereby dismissed. The

impugned judgment of conviction and order of

sentence passed by the Trial Court is confirmed.

Send back the Trial Court records along with

copy of the judgment.

SD/-

JUDGE EM