Khurshid Hussain S/O Iftekar ... vs The State Of Karnataka
2022 Latest Caselaw 2015 Kant

                            1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200102/2015


BETWEEN:

Khurshid Hussain S/o Iftekar Ahmed,
Age : 44 years, Occ: SDA in Panchayath Raj
Engineering Sub-Division Office, Devadurga,
R/o Hussain Alam Street, Yadgir.
                                                 ... Appellant

(By Sri Anilkumar Navadagi and
    Sri Shivanand V.Pattanshetti, Advocates)


AND:

The State of Karnataka
R/by Special P.P.
High Court of Karnataka,
Kalaburagi Bench.
(Through PSI of Lokayukta P.S.,
Raichur)
                                               ... Respondent
(By Sri Subhash Mallapur, Spl. PP)

      This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set aside the judgment
of conviction and order of sentence dated 28.09.2015 and
29.09.2015 respectively passed by the II Addl. Dist. &
                              2



Sessions Judge, Raichur in Special Case No.18/2011 and
acquit the appellant/accused.

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

                        JUDGMENT

Accused who suffered an order of conviction in

Special Case No.18/2011 on the file of II Addl. District and

Sessions Judge, Raichur (Special Judge) by judgment

dated 28.09.2015 has preferred this appeal.

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

Upon a complaint lodged by Balappa S/o Rangayya,

Lokayukta Police, Raichur registered a case in Crime

No.18/2011 for the offences punishable under Sections 7,

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

Corruption Act, 1988 (hereinafter referred to as 'P.C.Act'

for brevity). In the complaint, it is contended that he is

working as a Gangman in Panchayat Raj Engineering, Sub-

Division, Devadurga and in the year 1991 his appointment

was confirmed by the Government and he was entitled for

time bound increment. The other Gangman had also filed

appeals before the court and the court has allowed their

appeals and therefore, he also filed an application seeking

for grant of time bound increment and arrears of salary.

He enquired the accused Khurshid Hussain in that regard

and he told that all other Gangman have paid a sum of

`2,500/- and if he also pay a sum of `2,500/-, he would

prepare the time bound increment order and he would also

prepare the arrears bill. Subsequently, the bribe amount

was initiated and it was fixed at `1,500/-. Even that

amount the complainant was not ready to pay the said

sum as illegal gratification for processing his application,

himself and others decided not to part with the illegal

gratification have approached Lokayukta and lodged a

complaint. Police being convinced about the genuineness

of the complaint averments, arranged for the trap by

securing `1,500/- from the complainant and smeared the

phenolphthalein powder to currency notes. Police secured

three currency notes of `500/- denomination and secured

two panch witnesses and in their presence, the complaint

averments were read over and the colour test was

demonstrated and entrustment mahazar was drafted.

Thereafter, the complainant was required to visit the office

of the accused and handover the bribe amount on demand

made by the accused along with shadow witness.

Accordingly, the complainant tried to part with the tainted

money to the accused on 15.12.2010 but it was

unsuccessful. Again, on 20.12.2010 again trap was laid.

On that day, complainant visited the office of the accused

at about 4.15 p.m. and on demand made by the accused

handed over the tainted currency notes to his hands in the

presence of the shadow witness. Immediately pre

designated signal was given to the raid party. Raid party

arrived on the scene and raided the accused and recovered

the tainted currency notes from the tray kept on his table

and conducted the colour test. Colour test stood positive

and the raid party arrested the accused and seized the

tainted currency notes and drafted trap mahazar.

3. Subsequently, the matter was investigated in

detail and charge-sheet came to be filed against the

accused.

4. Presence of the accused was secured by the

learned Special Judge and necessary charges were framed

for the aforesaid offences. Accused having understood the

substance of the charge, denied the charge. Accordingly,

trial was held.

5. On order to prove the case of the prosecution,

prosecution examined 15 witnesses and relied on 29

documents which were exhibited and marked as Exs.P.1 to

P.29 and 08 material objects were also marked on behalf

of the prosecution as MOs.1 to 8.

6. On conclusion of the prosecution evidence,

accused statement was recorded as is contemplated under

Section 313 of Cr.P.C. Accused denied the incriminatory

materials found against him. However, he furnished the

written submissions on his behalf as is contemplated under

Section 313(5) of Cr.P.C. Thereafter, trial Judge heard the

parties in detail and passed an order of conviction

convicting the accused for the aforesaid offences and

passed an order of sentence as under:-

Default Offence Punishment Fine sentence Section 7 of P.C.Act Rigorous `15,000/- Rigorous imprisonment imprisonment of two years of three months

Section 13(1)(d) of Rigorous `15,000/- Rigorous P.C.Act imprisonment imprisonment of two years of three months

7. Being aggrieved by the same, accused is

before this court in this appeal.

8. In the appeal memorandum, following grounds

have been raised :-

x That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

x That, the Learned Sessions Judge has committed a serious error in convicting the appellant without

properly appreciating the evidence in its right prospective manner.

x That, accused is working as SDA in Panchayath Raj Sub-Division Deodurga. The complainant is also working at that time as Gangman in same Sub- Division Office. At the relevant time, one Shivanna Kandkur was working as FDA in Engineer Sub- Division Deodurga. There was a differences between the said Shivanna Kandkur and the accused. On the instigation of that person, the complainant filed a false complaint against the accused. This fact is not been properly appreciated by the court below.

x That, the complainant and others time bound increment sanction file was forwarded by Sub-Divn, Office, Deodurga on 08-12-2010 to the Divn. Office i.e., Executive Engineer, Raichur and whereas the alleged trap was held on 20-12- 2010. On the date of trap, the said time bound increment file was already lying before the Panchayath Raj Engineering Divn., at Raichur. That being so, no work of comnplainant was pending before the accused at Sub-Divn. Office in respect of time bound increment. Thereafter, the question of demand and acceptance of the bribe does not arise. The accused is not an authority either to sanction the payment of time bound increment or to make payment of such amount to Balappa

Gangman, the complainant. On the date of alleged trap, no work of complainant was pending before the accused at Sub- Divn. Office, Deodurga. So, this material fact is wrongly appreciated by the court below.

x The evidence of complainant i.e. PW-1 Balappa shadow witness is silent regarding demand and acceptance of illegal gratification. Even then court below convicted the appellant without proper application of mind is bad in law.

x That, complainant not deposed regarding seizure panchanama conducted by the IO as he was naturally submitted the trap was conducted about 4 to 5 years back, as he was unable to re-collect his memory. At this stage, the learned Spl. PP treated this witness as hostile as he was not support the case of the prosecution regarding seizure of amount. This fact is not been properly appreciated by the court below.

x That, the IO allegedly recovered not only Rs.1500/-

of this case, but also allegedly recovered other amount, which is paid by other Gangman to the accused and the said amount was also kept in the Almirah with the list of Gangman, who are all paid bribe amount to the accused. But, though the prosecution cited all the persons as witnesses, they have turned hostile to the prosecution case. The

benefit of this material evidence ought to have extended to the appellant and acquitted him by the trial court.

x That, in the present case IO Mr. Y.Baburaj expired, because of this reason prosecution unable to examine the I0, examined PW-13 one Shivakumar Police prosecution Constable. The evidence of PW- 13 in anyway help to the prosecution. Since, main IO is the architect of the prosecution case. So, the trial court ought to have given benefit of non examination of concerned IO.

x That, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the offence U/s. 7 of the Act-Mere recovery of the currency notes from the possession of the accused cannot constitute the offence U/s. 7 of the act. Unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe-Mere possession and recovery of the tainted notes from the accused without proof of demand will not bring home the offence U/s. 7 of the act.- Same also will be conclusive insofar as offence U/s. 13(1)(d)(i)(i) is concerned as in the absence of the any proof of demand for illegal gratification, use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. This

principle of law is not been properly appreciated by the trial Court.

x That, looking into absolutely no work has pending before the appellant to do official favourism to help the complainant either to release the time bond increment and arrears of bill.

x That, role of investigation officer- He should act as impartial and independent investigating agency-He should not associate himself and assist the complainant, giving tape recorder to record conversation (via bribe case) with regard to demand of bribe does not constitute preliminary enquiry, rather it amounts to collecting the evidence against in person accused of. This indicates undue interest shown by the IO in the investigation of the case. Therefore, it becomes doubtful to believe the credibility and integrity of the In view of the above investigation and the final report. serious illegalities, the investigation gets vitiated.

x That, alleged sanction granted by PW-15 is not a Competent person to grant the sanction. So, there is no proper and valid sanction was obtained while prosecuting the appellant.

x That, looking into the all the evidence lead by the prosecution there is a in-built contradiction in the

evidence of demanded and regard to the witnesses with all acceptance.

x That, appellant has discharged the burden under Section 20 of the Prevention of Corruption Act which is a attending rebuttable presumption with the aid of attending of aid circumstances available on record and appellant explained in his 313 of Cr.P.C. statement

x That, the circumstances which were relied upon by trial Court to find accused guilty were not specifically brought to notice of accused. Therefore, the essence of his examination under Section 313 of the Code was rendered an empty formality. On the count alone the impugned judgment of the Hon'ble lower Court is unsustainable to be set aside.

x That, it is settled principle of law in criminal jurisprudence that if accused is proved the burden with preponderance of probability is sufficient and not required as prosecution to prove beyond reasonable doubt. That, finding of the Hon ble Court is that the prosecution has proved its case against the accused beyond reasonable doubt that the accused obtained bribe amount from the complainant and the accused failed to rebut the presumption under section 20(1) of the Act is not probable and acceptable one.

x That, Hon'ble lower Court has not properly considered the section 20 of the Act. When any official favour is to be shown by the appellant then only section 20 made applicable in this case in hand. No work is pending as on the date of alleged incident.

x That Hon'ble lower court committed an error in holding that prosecution has proved that the accused has committed the offences punishable under Section 7, 13(1) (d) of the Act and the accused being the public servant has obtained the bribe amount from the complainant as motive or reward to do official favor to the complainant.

x That, decisions submitted on behalf of the accused are aptly applicable to the facts of the case, where as Hon 'ble lower court wrongly held that the facts and circumstances those cases are different from the facts and circumstances of this case. That Hon'ble Court has to assign reasons but did not done so.

x That there are material contradictions and omissions in the evidence of complainant and shadow witnesses have not corroborated each other.

x That, without admitting guilt, order of sentence imposed not on to appellant is too higher side, exorbitant and not according to the law.

x That, court below ought to have given a benefit of doubt to the appellant.

x It is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated his findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.

9. Reiterating the above grounds, Sri Anilkumar

Navadagi on behalf of Sri Shivanand V.Pattanshetti

vehemently contended that trial Judge has grossly erred in

convicting the accused for the aforesaid offences. He

pointed out that the explanation offered by the accused is

not even taken into consideration by the learned Judge

and therefore, the impugned judgment is bad in law and

sought for allowing the appeal.

10. Per contra, Sri Subhash Mallapur learned

counsel for respondent/Lokayukta supported the impugned

judgment. He pointed out that the work of the complainant

was very much pending with the accused as on the date of

trap and the prosecution has placed cogent and convincing

evidence in the form of oral testimony of complainant and

the shadow witness and coupled with the documentary

evidence which would conclusively established that

prosecution has proved all ingredients to attract the

aforesaid offences and sought for dismissal of the appeal.

11. In the light of the rival contentions, following

points would arise for consideration are :-

1. Whether the appellant/Lokayukta has successfully established before the court that accused in order to show official favour to Balappa (PW.1) demanded sum of `2,500/- at the first instance and agreed to receive `1,500/- from the complainant PW.1 and took `1,500/- on 20.12.2010 and thus committed an offence punishable under Sections 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. Whether sentence is excessive ?

Regarding point Nos.1 and 2 :

12. In the case on hand, in order to prove the

demand and acceptance and work pending with the

accused, prosecution relied on the oral testimony of

complainant who is examined as PW.1. PW.1 in his

examination-in-chief, reiterated the complaint averments.

He further deposed that after he lodging the complaint

with the Lokayukta police, entrustment mahazar was

prepared on 15.12.2010 and the raid party attempted to

trap the accused on 15.12.2010 itself. However, since the

accused was not available trap failed.

13. Accordingly, again on 20.12.2010, the raid

party laid trap against the accused. At 4.15 p.m. the

complainant visited the office of the accused and

requested for his work and handed over the tainted money

which was kept in a tray on his table and pre-signal was

given and raid party was able to immediately arrive on the

scene and recovered the tainted money from the custody

of the accused and colour test also stood positive. These

aspects of the matter has been deposed to by the

complainant with graphic details. In his cross-examination

no useful materials are elicited so as to disbelieve the

lodging of complaint and laying of trap. However, in his

cross-examination, he admits that when Lokayukta police

visited Devadurga Panchayat Office, there was no file or

the application pertaining to the complainant was found.

Shadow witness also supported the case of the prosecution

in toto in establishing the fact that the trap was successful.

14. PW.2 is the co-panch, PW.3 is the shadow

witness, they have also supported the case of the

prosecution in toto in establishing that there was a proper

entrustment mahazar and trap mahazar.

15. PWs.4 to 6 are the co-gangman who did not

support the case of the prosecution in establishing the fact

that the accused had demanded a sum of `2,500/- for

processing their applications for grant of time bound

increment and preparing the arrears bill. Though they have

been cross-examined in detail by confronting the

statements said to have been given by them before the

Investigating Officer no useful materials is elicited from

their cross-examination.

16. PW.7-Mr.Sambashiva, is the Second Division

Clerk, PWD, Raichur. He deposed before the court that on

14.12.2010 he received a letter from inward section from

Assistant Executive Engineer of PRE Sub-Division,

Devadurga along with the application of the complainant.

He was on leave up to 23.12.2010 and on 23.12.2010 he

has returned the application noting the fact that instead of

mentioning the Rule as 42B it has been mentioned in the

application as 12B. In other words, the application filed by

the complainant to the accused was already remitted to

the office of PW.7 and he had received the application on

14.12.2010 and he actually returned the file with technical

objections on 23.12.2010. In other words when the trap

took place on 20.12.2010 the application of the

complainant was not pending with the accused. He has not

been treated as hostile witness by prosecution.

17. PW.8 is the First Division Assistant who has

also turned hostile to the case of the prosecution. PW.9 is

the First Division Assistant of Panchayat Engineer who has

stated that he has received the consolidated letter on

18.12.2010 and placed the same to the table of PW.7.

PW.10 is the Engineer who has issued the service

particulars of the accused. PW.11 is the Engineer, who

prepared the spot sketch. There evidence are formal in

nature.

18. PW.12 is the official superior of the accused

who did not support the case of the prosecution in

identifying the recorded voice. PW.13 is the Police

Constable of Lokayukta who deposed about the

investigation conducted by the Investigating Officer as the

investigation was no more at the time of trial.

19. The official from FSL examination by name

Duryodana is examined as PW.14 who examined the

seized samples and issued the FSL report as per Ex.P.28.

PW.15 is the sanctioning authority who accorded the

sanction to prosecute the accused.

20. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant.

21. It is pertinent to note that at the time of

recording the statement of the accused, accused has given

a written submission which reads as under :-

"The accused submits his further statement U/S.313 of Cr.P.C as under :-

1. That, the accused at the relevant time was working as S.D.A in Panchayat Raj Sub Divn., Deodurga. The complainant Balappa was working at that time as Gangman in same sub Divn. Office. At that relevant time one Shivanna Kandkur was working as FDA in Eng. Sub Divn. Deodurg. All was not well in official work between this accused and said Shivanna Kandkur. Due to said difference the said Shivanna Kandkur instigated the complainant PW.-1 Balappa to file the false complaint before Lokayukta police against this accused.

2. It is submitted that, the accused was looking after the establishment section at relevant time in said office at Deodurg. The complainant and

others time bound increment sanction file was forwarded by sub Divn. Office, Deodurg on 8-12- 2010 to the Divn. Office i.e., Ex.Engineer, Raichur and whereas the alleged trap was held on 20.12.2010. On the date of trap the said bound increment file was already lying before the Panchayat Raj Engineering Divn., at Raichur. That being so, no work of complainant was pending before this accused at Sub Dn. Office in respect of time bound increment. These facts are borne out from the material on record. That being so, the question of demand, acceptance of bribe would not arise in this case.

3. That, this accused is not an authority either to sanction the payment of time bound increment or to make payment of such amount to Balappa Gangman the complainant. On the date of alleged trap no work of complainant was pending before this accused at Sub Divn. Office, Deodurg.

4. That, the evidence of complainant PW.1 Balappa and PW.3 Malappa shadow witness is silent regarding demand and acceptance of illegal gratification. This accused is innocent and honest and he being SDA and he has not committed the offence in question.

Hence, it is humbly prayed that, the Hon'ble Court be pleased to received this further statement

of accused U/S.313 Cr.P.C and to consider the same at the time of recording judgment."

22. As could be seen from the written submissions,

there is a specific stand taken by the accused that as on

the date of trap no work of the complainant was pending

with the accused.

23. It is well settled principle of law that in order to

record an order of conviction, prosecution has to establish

the following three ingredients ;-

x Demand and acceptance of bribe money;

x Handling of tainted money by the accused on the day of trap (colour test);

x Work of the complainant must be pending as on the date of trap with the accused.

24. In the case on hand, the prosecution witness

PW.7 has categorically admitted in the cross-examination

that he received the application of the complainant in his

office at Raichur on 14.12.2010 and he returned the

application on technical grounds on 23.12.2010. The trap

has been laid on 20.10.2010. In other words, as on the

date of trap the application of the complainant was not

pending with the accused and the same had already been

processed by the accused and sent to the higher officials.

When there is no work pending with the accused that of

the complainant as on the date of trap, the trial Judge is in

correct in recording a finding that accused is guilty of the

aforesaid offences.

25. In the impugned judgment, the trial Judge has

not bestowed his attention to the written explanation

offered by the accused. These aspects of the matter when

considered cumulatively, this court is of the considered

opinion that mere handling of the tainted currency and

prosecution establishing the demand and acceptance of the

tainted currency and colour test being positive itself would

not be sufficient to maintain an order of conviction by

placing the reliance on the decision of the Hon'ble Apex

court in the case of A.Subair v. State of Kerala reported

in (2009) 6 Supreme Court Cases 587. Accordingly,

point No.1 is answered in the negative and point No.2 is

answered in the affirmative.

Regarding point No.3 :

26. This court finding on point Nos.1 and 2, point

No.3 would not survive for consideration. Accordingly, pass

the following :

ORDER Appeal is allowed.

The judgment dated 28.09.2015 and order of

conviction dated 29.09.2015 passed in Special Case

No.18/2011 by the II Addl. District and Sessions Judge,

Raichur is hereby set-aside.

Accused is acquitted and his bail bonds stands

discharged.

Fine amount, if any, deposited is ordered to be

refunded to the accused.

Sd/-

JUDGE sn