State Of Karnataka vs Ramesh S/O Genusingh Rathod
2022 Latest Caselaw 1646 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200104/2015


BETWEEN:

State of Karnataka
Represented by
Special Public Prosecutor (Lokayukta),
High Court of Karnataka,
Kalaburagi Bench.
                                              ... Appellant

(By Sri Subhash Mallapur, Spl.PP for Lokayukta)


AND:

Ramesh S/o Genusingh Rathod,
Age : 37 years, Occ : FDA,
District Backward Classes and
Minorities Welfare Office, Gulbarga,
R/o Quarter No.15/3, PWD Quarters,
Old Jewargi Road, Gulbarga.
                                            ... Respondent

(By Sri Avinash A.Uplaonkar and
    Sri Ravi K.Anoor, Advocates)

      This Criminal appeal is filed under Section 378(1)
and (3) of the Cr.P.C praying to grant leave to appeal
against the judgment and order of acquittal dated
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07.07.2015 passed in Special Case No.577/2010 on the file
of the Principal Sessions Judge at Kalaburagi whereby
acquitting the accused/respondent for the offence
punishable under Sections 7, 13(1)(d) and 13(2)of the
P.C.Act, 1988.

      This appeal coming on for Further Hearing this day,
the Court delivered the following:

                               JUDGMENT

The present appeal is filed by the State/Lokayukta

challenging the judgment passed in Special Case

No.577/2010 dated 07.07.2015 on the file of Principal

District and Sessions Judge, Kalaburagi.

2. Brief facts of the case are as under :-

One Mahesh lodged a complaint with Lokayukta

Police on 25.02.2009 stating that his cousin

Smt.Akkamahadevi has applied for Staff Nurse post and

she has been serving as Staff Nurse in Primary Health Care

Centre, Hasinapur village in Shorapur Taluk and she has to

furnish the caste certificate for the purpose of drawing

salary and she had applied the same to the District

Backward Classes and Minority Welfare Office, Kalaburagi.

In that regard, the complainant met one Ramesh

(accused) who in turn demanded for `2,000/- as illegal

gratification for furnishing the caste certificate. Since the

complainant was not interested in paying the same, the

discussion took place and it was reduced to `1,000/-.

Complainant was not even interested for the said amount

and therefore, he approached the Lokayukta Police. Being

convinced about the conservation that took place between

the accused-Ramesh and the complainant, Lokayukta

Police registered a case in Crime No.2/2009 for the

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

Section 13(2) of Prevention of Corruption Act, 1988 and

arranged for the trap. On the same day at about 5.15 p.m.

in the evening the accused met the complainant in Shanthi

Sagar Hotel and near the pan shop, the accused took the

illegal gratification of a sum of `1,000/- which was in the

denomination of two `500/- currency notes smeared with

phenolphthalein powder and pre-signal was given and trap

party raided on the accused and recovered the tainted

money from the custody of the accused and conducted the

colour test and arrested the accused and drafted a trap

mahazar. Thereafter, accused was arrested and the matter

was investigated and Lokayukta police filed charge-sheet.

3. Presence of accused was secured before the

learned Magistrate and Charge was framed. Accused

pleaded not guilty and trial was held.

4. In order to prove the case of the prosecution,

prosecution in all examined 13 witnesses as PWs.1 to 13

and relied on 23 documents which were exhibited and

marked as Exs.P1 to P.23. 10 material objects were also

relied on by the prosecution, which were marked as MOs.1

to 10.

5. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C was recorded. Wherein the accused has denied all

the the incriminatory materials found against him and has

answered before the court that he would submit written

submissions before the court as is contemplated under

Section 313(5) of Cr.P.C. Likewise, he has furnished the

written submission wherein he has stated that he has not

obtained any money from the complainant-Mahesh and the

tainted money was trusted into his pant pocket by the

complainant with ulterior motive.

6. Taking note of these aspects of the matter and

also taking note of the admissions given by PW.10 who is

actual applicant who sought for issuance of caste

certificate, the learned trial Judge acquitted the accused by

the impugned judgment.

7. Being aggrieved by the same, the Lokayukta

has preferred the present appeal with the following

grounds :-

x That, the Trial Court has without proper appreciation of the evidence and material placed on record by the prosecution has proceed to pass the judgment and order acquitting the accused/respondent for the offences he has been charge sheeted, hence the same is liable to be set aside.

x That, the reasons assigned by the learned Special Judge while passing the order of acquittal of the charged offence are not justifiable and unsustainable in the eye of law.

x That, the prosecution has examined in all 13 witnesses as PW-1 to PW-13 and got marked Ex P-1 To P-23. All the

witnesses have supported the case of the prosecution. PW-1 & 2 who are the punch witnesses have deposed before the court regarding drawing of entrustment mahazar and fully supported the prosecution case, but the Special Court has not considered these aspects and wrongly concluded that the prosecution has failed to prove the charge against the accused holding that there are inconsistencies in their evidence. In fact they are not material contradictions, hence the appreciation of the trial court is incorrect.

x That, admittedly the prosecution has established the demand of bribe, acceptance and subsequently recovery of the amount from the accused. Hence, the prosecution has established the offences against the accused punishable under section 7 and 13(1) (d) R/w section 13(2) of the Prevention of Corruption Act 1988.

x That, in support of the complainant, PW-3 who is the complainant has also supported the case of the prosecution, PW-4 who is the Manager of Distinct, Backward Classes and Minorities Welfare Office, Bidar has also supported the case of the prosecution and deposed before the Court that the accused is working as FDA who was entrusted with the work of Account Section and also issuing of validity Certificate. PW-5 deposed regarding issuance of service particulars of the accused and PW-7 is the Engineer who has drawn the sketch of the scene of occurrence, PW-8 who is the Commissioner of Backward lasses and Minorities Welfare Department who issued the Sanction order for prosecuting the accused, all the

witnesses have deposed before the court and supported the case of the prosecution. Hence there are no grounds for the Spl Court to acquit the accused, which is in violation of Section 20 of the P. C. Act.

x That, PW-12 & 13 are the Investigations officers who have conducted the investigation in the above case and have deposed in length about the investigation and also deposed regarding recording of statements of the witnesses, filing of the charge sheet. And has supported the case.

x That, even the conversation recorded has been displayed which establishes the demand and acceptance of bribe by the accused. The evidence of the punch witnesses who have conducted pre trap and post trap punchnamas have corroborated the case of the complainant and looking to the evidence and the documents marked it clearly establishes the acceptance of the bribe which attract the penal provisions of Section 7 and 13(1) (d) R/w Section 13(2) of the Prevention of Corruption Act 1988.

x That, the learned Session Judge has ignored the provisions of Section 20 which gives the presumption of acceptance of gratification. Except the denial of the allegations made against the accused person he has not rebutted the case of prosecution and the accused has not adduced any defense evidence, hence the Judgment and order of acquittal holding that the prosecution has failed to establish the charge against the accused person is illegal, improper and against the established principals of law and

procedure and hence the same is liable to be set aside. The ruling submitted by the prosecution has not been considered at all and there is no observations on that point, hence the judgment is perverse. That, viewed from any angle the impugned judgment and order of acquittal passed by the trail court is not only illegal, but also perverse; hence interference of this Hon'ble Court is sought for.

8. Reiterating the above grounds, learned counsel

Sri Subhash Mallapur vehemently contended that the trial

court has not properly appreciated the material evidence

on record and wrongly acquitted the accused resulting in

miscarriage of justice and sought for allowing the appeal.

9. He also pointed out that the prosecution has

successfully established the demand and acceptance of the

bribe money and colour test has turned positive, the

explanation offered by the accused for handling of the

tainted money is vague in nature and the same has not

been properly appreciated by the learned trial Judge and

sought for allowing the appeal.

10. Per contra, learned counsel appearing for the

accused/respondent pointed out and that there is a

categorical admission made by PW.10 who has filed an

application seeking caste certificate. He further pointed out

that PW.10-Akkamahadevi has specifically admitted that

on 13.02.2009 itself, the accused had attended the

application filed by her and sent the same to the Zilla

Panchayath Officer which also finds place in the trap

mahazar relied on by the very prosecution itself and

therefore, the learned trial Judge has rightly justified in

acquitting the accused and sought for dismissal of the

appeal.

11. In view of the rival contentions, following

points would arise for consideration :-

1. Whether the appellant/Lokayukta has successfully established before the court that accused in order to show official favour to Akkamahadevi (PW10) demanded sum of `2,000/- at the first instance and agreed to receive `1,000/- from the complainant PW.3 and took `1,000/- on 25.02.2009 and thus

committed an offence punishable under Section 7, 13(1)(d) and punishable under Section 13(2) of the Prevention of Corruption Act ?

2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference ?

3. If so, what order ?

12. In order to establish an offence under

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

Prevention of Corruption Act, the prosecution is required to

establish following three ingredients.

¾ Demand and acceptance of bribe money;

¾ Handling of tainted money by the accused on the

day of trap (colour test);

¾ Work of the complainant must be pending as on

the date of trap with the accused.

13. With the above legal requirements, when the

material evidence on record is analyzed, the prosecution

case suffers for want of substantive evidence in the form

of the oral testimony of the complainant who has turned

hostile to the case of the prosecution in toto.

14. In the light of the above legal requirement, the

materials on record is to be re-appreciated by this court.

15. Learned counsel for the appellant Sri Subhash

Mallapur vehemently contended that in respect of the

application filed by PW.10 seeking caste certificate, PW.3 -

Mahesh who is relative of PW.10 approached the accused

and accused demanded `2,000/- as the illegal gratification

to attend the application and it was settled at `1,000/- and

PW.3 was not interested in parting away `1,000/- as illegal

gratification as demanded by the accused and therefore,

lodged a complaint with Lokayukta and trap has been

successful and colour test stood positive and therefore,

prosecution has proved its case beyond all reasonable

doubt. He also pointed out that the shadow witnesses,

complainant have supported the case of the prosecution in

toto and therefore, trial Court ought to have convicted the

accused for the aforesaid offences.

16. This court meticulously considered the

evidence of PW.2 and PW.3. PW.2 is the shadow witness

who deposed in line with the contents of experimental

mahazar and trap mahazar. However, in his cross-

examination he admits that he was standing in the second

door of Shanti Sagar Hotel and if he stands near the

second door of the Shanti Sagar Hotel, what transpires

near the pan shop is not visible or not heard by him and he

has not seen the complainant-PW.3 handing over the

tainted money to the hands of accused.

17. Further, PW.3 has also supported the case of

the prosecution deposing in line with the complaint

averments, trap and experimental mahazar in his

examination in chief. However, in the cross-examination

he has stated that himself and Rajashekar went to the

place of incident, accused arrived at two and half hours

later and called him outside the hotel near pan shop.

18. He admits that there is a auto stand situated in

front of Shanti Sagar hotel and there is a electrical store

adjacent to Shanti Sagar hotel and there are number of

books shop and other shops in and around the place of

incident.

19. He admits that if somebody stands near the

second door of Shanti Sagar Hotel, what transpires near

the pan shop would not be visible.

20. He specifically admitted in his cross-

examination that the accused met him near the pan shop

and after handing over the tainted money to him there is

no conversation between him and the accused.

21. These aspects of the matter have been rightly

appreciated by the learned trial Judge.

22. The important aspect assuming for a moment

that the prosecution has been able to prove the trap and

the colour test, the important factor that has to be looked

into by the court for recording an order of conviction for

the above said offences is that the work of the complainant

must be pending with the accused. In the case on hand, in

this regard, the testimony of PW.10 assumes great

importance. PW.10 is the person who has actually applied

for grant of caste certificate in the office of the accused.

She has specifically admitted in her cross-examination that

as on date 13.02.2009 there no work pending with her. As

could be seen from Ex.P.16 which is possessed in the office

of the accused with regard to issue of caste certificate and

also contents of trap mahazar, it is seen that accused had

already attended the application filed by the Akkamahadevi

on 13.02.2009 itself and the contents of mahazar clearly

shows that the application was sent to Zilla Panchayat

Office and from there it was required to come back to the

DC Office and then the certificate would be issued. No

doubt the original sindhuthva certificate finding the

photograph of the Akkamahadevi-PW.10 is not signed by

the signing authority which is available in the file. It is

pertinent to note that it is not the accused who is required

to sign the caste certificate and it was pending with the

other officials of the office of the accused and the job that

was entrusted to the accused as on 12.02.2009 itself

having been completed, it cannot be construed that any

work of the PW.10 was pending with the accused as on the

date of trap i.e., 25.02.2009. Following the dictum of the

Hon'ble Apex Court in the case of A.Subair v. State of

Kerala reported in (2009) 6 Supreme Court Cases

587.

23. This court is of the considered opinion that the

prosecution has not been able to prove that the accused

handled the tainted money only with an intention to show

official favour in respect of the application filed by PW.10

seeking grant of caste certificate. Accordingly, mere

proving of the trap and the colour test stood positive itself

would not be sufficient enough to record an order of

conviction against the accused as is contended on behalf of

the prosecution/Lokayukta.

24. Further, whenever a duly constituted court

records an order after full-fledged trial, the innocence of

the accused stands reinforce.

25. Further, in a given case if two views are

permissible, the view that favours the accused must be

preferred. Following these celebrated settled principles of

criminal jurisprudence, this court is of the considered

opinion that none of the grounds urged in the appeal

memorandum stand merit and accordingly point Nos.1 and

2 are answered in the negative and pass the following

ORDER

Appeal is dismissed.

Bail bonds if any stands discharged.

Sd/-

JUDGE

sn