Karnataka High Court
Sri Bhimaraya S/O Basappa Halli vs Dr. N Manjula on 10 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
W.P.NO.205561/2019 (GM-KLA)
C/w
CCC NO.200115/2020 (CIVIL)
In WP No.205561/2019
BETWEEN:
Sri. Bhimaraya S/o Basappa Halli,
Age: 56 years, Occ: Assistant Executive Engineer,
220 KV Receiving Station,
KPTCL Basavan Bagewadi, Dist: Vijayapura,
R/o: H.No.52/53, Shivayogi Nagar,
Ashram Road, Vijayapura-586103.
... Petitioner
(By Sri. Avinash A.Uploankar, Advocate)
AND:
1. The State of Karnataka
Represented by its Principal Secretary,
Energy Department, Vikas Soudha,
Bangalore-560 001.
2. Managing Director,
Karnataka Power Transmission Corporation Limited,
Cauvery Bhavan, Bangalore-560 009.
3. The Director (Admn.),
Karnataka Power Transmission Corporation Limited,
Cauvery Bhavan, Bangalore-560 009.
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4. The Hon'ble Upa-Lokayukta,
Rep. by its Registrar,
M.S.Building, Dr.Ambedkar Veedhi,
Bangalore-560 001.
5. Karnataka Lokayukta,
Represented by is
Additional Registrar of Enquires-11
M.S.Building, Bangalore-560 001.
... Respondents
(By Sri.Mallikarjun C.Basareddy, AGA for R1;
By Sri. Sanganagouda V.Biradar, Advocate for R2 & R3;
By Sri. Subhash Mallapur, Advocate for R4 & R5)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to (i) call for records relating to issue
of the impugned order bearing No.KA.VI.PRA.NI.NI/B21/
32323/2012-13 dated 24.08.2013, entrusting the enquiry under
Regulations 14-A of the KPTCL Employees (Classification,
Disciplinary, Control and Appeal) Regulations, 1987, passed by the
2nd respondent (vide Annexure-B) and after perusal set aside the
same;
(ii) Issue any appropriate order or direction or a writ in
the nature of certiorari and to quash the enquiry report passed by
5th respondent in LOK/INQ/14-A/355/2013/ARE-11 dated
06/03/2019 vide Annexure-E, the recommendation order passed by
the 4th respondent in No.LOK/INQ/14-A/355/2013/ARE-11 dated
08/03/2019 Vide Annexure-F and in pursuance of which the
decision / order taken by the 2nd respondent Vide order bearing
No.Ka.Vi.Pra.Ni.Ni./B21/32323/2012-13 dated 19.10.2019 of the 2nd
respondent (Vide Annexure-H) and etc.
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In CCC No.200115/2020
BETWEEN:
Sri. Bhimaraya S/o Basappa Halli,
Age: 56 years, Occ: Assistant Executive Engineer,
220 KV Receiving Station,
KPTCL Basavan Bagewadi, Dist: Vijayapura,
R/o: H.No.52/53, Shivayogi Nagar,
Ashram Road, Vijayapura-586103.
... Complainant
(By Sri. Avinash A.Uploankar, Advocate)
AND:
Dr.N.Manjula
Managing Director,
Karnataka Power Transmission Corporation Limited,
Cauvery Bhavan,
Bangalore-560 009.
... Accused
This CCC is filed under Articles 215 of the Constitution of
India R/w Section 11 of the Contempt of Court Act, praying to
initiate the contempt proceedings against the accused for
disobedience and disrupting the order dated 12.12.2019 passed by
this Hon'ble Court in W.P.No.205561/2019 (GM-KLA) vide
Annexure-A and etc.
These petitions coming on for further hearing this day,
K.S. Hemalekha J., made the following:
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ORDER
The petitioner is aggrieved by the enquiry report dated
06.03.2019 and recommendation letter dated 08.03.2019 by
the UpaLokayukta (respondent No.4) and order dated
19/10/2019 by respondent No.2/Managing Director, Karnataka
Power Transmission Corporation Limited ("KPTCL" for short),
whereby the respondent has recommended for compulsory
retirement and denial of 20% of pensionary benefit
permanently under the Regulation 14A of the KPTCL
Employees (Classification, Disciplinary, Control and Appeal)
Regulations, 1987 Rule 9(6) (hereinafter referred to as "the
Regulation" for the sake of brevity).
2. One Khaja Bandenawaz, who was working as an
Electrical Class I contractor lodged a complaint on 06.07.2012
before the Lokayukta Police Station against Bhimaraya
Basappa Halli / petitioner herein who was working as an
Assistant Executive Engineer, Sub-Division No.2, HESCOM,
Vijayapura had demanded a sum of Rs.5,000/- from the
complainant for putting signature to the completion report
including the supply agreement and the estimation and had
received Rs.1,000/- 03.07.2012 and on 06.07.2012, the
remaining gratification amount of Rs.4,000/- was accepted in
the office of the petitioner and a case was registered and the
Police Inspector, Karnataka Lokayukta, Vijayapura filed
charge sheet in Vijaypura Lokayukta Police Station in Crime
No.8/2012 against the petitioner for the offences punishable
under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as
"the Act" for the sake of convenience) and after filing the
charge sheet, the same was registered as Special Case
(Lok)No.3/2013 before the Principal Sessions Judge, Special
Judge of Vijaypura.
3. In the Special Case (Lok)No.3/2013, the Court
acquitted the accused on 23.02.2013, holding that the
prosecution has failed to prove beyond all reasonable doubt
that the accused had demanded bribe amount and the same
was accepted by the petitioner and acquitted the accused
under Section 235(1) of the Code of Criminal Procedure
("Cr.P.C.") for the offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the Act. The said order of
acquittal passed by the Principal Sessions Judge, Special
Judge of Vijaypura, in Special Case (Lok)No.3/2013 remained
unchallenged by the Lokayukta and it has attained finality.
During the pendency of the criminal proceedings, the
UpaLokayukta/respondent No.4 initiated suomoto proceedings
against the petitioner on the same set of facts. Respondent
No.3/Director of KPTCL entrusted the enquiry under the
Regulation 14(A) of the KPTCL Employee (Classification,
Disciplinary, Control and Appeal) Regulation 1987, to
respondent No.2/Lokayukta.
4. Pursuant to the entrustment order, the enquiry
was entrusted to the Additional Registrar of Enquiries-III and
Articles of charges were issued against the petitioner on
26/09/2013. The enquiry was proceeded and the petitioner
submitted his defense statement. The Lokayukta/respondent
No.5, after enquiry submitted his report on 06/03/2019 to the
UpaLokayukta/respondent No.4 holding that the petitioner is
guilty of charges leveled against him in terms of charge sheet
that was issued to the petitioner. The
UpaLokayukta/respondent No.4 in turn along with his
recommendation submitted the report to respondent
No.2/Managing Director of KPTCL on 08.03.2019 holding that
the nature of charges leveled against the petitioner is proved
recommending the Government for imposing the penalty of
compulsory retirement from service and also from imposing
penalty of permanently withholding 20% of the pension
payable to the petitioner.
5. Pursuant to this, second show-cause notice was
issued to the petitioner enclosing the report of the Enquiry
Officer dated 06.03.2019 and the recommendation of the
Lokayukta dated 08.03.2019 calling upon the petitioner as to
why he should not be levied penalty as recorded by the
Lokayukta and to submit his reply within fifteen days. The
petitioner submitted his reply. Respondent No.2/Managing
Director, KPTCL not accepting the contention of the petitioner
imposed compulsory retirement and denial of 20% of
pensionary benefit permanently under Regulation 14-A of the
KPTCL Rules. Challenging the initiation of enquiry report of
the Enquiry Officer, recommendation and the petitioner
subjecting for enquiry on the same charge for which he has
already been acquitted by the competent Court, the petitioner
has filed the instant writ petition.
6. Heard Sri Avinash A. Uplaonkar, learned counsel
for the petitioner; Sri Mallikarjun C. Basreddy, HCGP for
respondent No.1; Sri Sanganagouda.V.Biradar, learned
counsel for respondent Nos.2 and 3; Sri Subhash Mallapur,
learned counsel for respondent Nos.4 and 5 and perused the
material on record.
7. In addition to the various contentions urged by the
learned counsel for the petitioner in the petition and referring
to the material on record would contend that the report of
respondent No.4 dated 23.03.2019 has been recommended
for penalty of compulsory retirement from service is without
any authority as the Board is the only competent authority to
take decision. It is further contended that the petitioner being
honourably acquitted by the trial Court vide judgment dated
23.02.2016 in Special Case (Lok)No.3/2013 and the
Departmental Enquiry being on the same set of facts could not
have been continued by respondent No.2 and the penalty
imposed by respondent No.2 on such enquiry is vitiated. He
further contended that the compulsory retirement and denial of
20% of the pensionary benefits permanently under the
Regulation 14-A of the KPTCL Regulation is grossly
disproportionate to the charges proved and it is excessive. To
buttress his submission, learned counsel placed reliance on
the order of the Co-ordinate Bench reported in
i) WP No.203239/2019 (GM-KLA) order dated
29.05.2020 in the matter of (Aejaz Hussain Vs
The State of Karnaaka and others)
ii) WP No.111813/2019 (GM-KLA) order dated
02.02.2021 in the matter of (Chandrasekhar
Bhimappa Madar Vs Karnataka Lokayukta and
others)
iii) WP No.114543/2015 (S-KAT) order dated
08.01.2021 in the matter of (Srikrishnana
Megalamani Vs The State of Karnataka and
others)
And also relied on the judgment of the Apex Court in the case
of :
i) Himalya Vyapaar Pvt. Ltd. & Anr. Vs Union of
India & others.
ii) Shree Chamundi Mopeds Ltd Vs Church or
South India Trust Association, order dated
29.04.1992, passed by Supreme Court of India.
8. Per contra, learned High Court Government
Pleader would contend that the order of penalty imposed on
the petitioner was after due application of mind and
considering the gravity of misconduct committed by the
petitioner and the Board was competent to entrust the enquiry
at the outset and has rightly imposed penalty to compulsory
retirement and denial of 20% of the pensionary benefit
permanently and would support the impugned order.
would contend that the recommendation dated 08.03.2019 to
compulsorily retire the petitioner withholding 20% of the
pensionary benefit payable to him is after due consideration of
the objections filed by the petitioner. It is also contended that
the petitioner was caught in the trap for his misconduct and
the penalty imposed on him is as per the misconduct by the
petitioner and would contend that the finding of the criminal
Court will not have any bearing upon the conduct and result of
the Departmental Enquiry as the two are independent. In
order to substantiate, the submission the learned counsel
relied upon the judgment of the Hon'ble Apex Court in :
i) Union of India Vs C.L.Verma (Civil Appeal
No.611/1993);
ii) Civil Appeal No.7279/2019, in the case of
Karnataka Power Transmission Corporation
Limited represented by its Managing Director
vs. C.Nagaraju;
iii) Civil Appeal No.5848/2021 in the case of Union of
India vs. Dalvir Singh in support of his contention.
representing the Lokayukta would contend that the trial in
criminal case and Departmental Enquiry are entirely different
and the two cannot be held and continued simultaneously as
the departmental enquiry can be conducted even after the
acquittal of the Government servant in a criminal Court and he
would contend that the enquiry levelled in both the
proceedings are totally different. In order to substantiate the
submission, the learned counsel relied upon the judgment of
the Hon'ble Apex Court in: Union of India (d) and (e) type
separate sheet 4 and 5
i) Civil Appeal No.7130/2009 Shashi Bhusan
Prasad vs. Inspector General Central Industrial
Security.
ii) Civil Appeal No.7403/2021 Maharashtra State
Road Transport Corporation vs. Dilip Uttam
Jayabhay.
11. Having given our anxious consideration to the
submissions made by the learned counsel for the parties and
having perused the material on record, the points that arise for
consideration are:
(i) Whether the acquittal of the petitioner by
the criminal Court would have bearing on
the departmental enquiry and the penalty
imposed?
(ii) Whether the departmental enquiry held is
vitiated by principles of natural justice?
Point No.1:
12. In the criminal proceeding initiated by the
Lokayukta in Special Case (Lok)3/2013 is concerned, it is held
that the that the prosecution has failed to prove beyond all
reasonable doubt that the petitioner had demanded bribe
amount and also accepted the same. In the competent
criminal Court after full-fledged trial and on the basis of the
accused filing his statement under Section 13(1)(5)(v) of the
Cr.P.C., wherein he has stated that the petitioner has never
demanded or accepted any bribe and without the knowledge
of the petitioner the amount was kept beneath the tray of his
table and not only considering the statement of the accused,
in the Special Case (Lok)3/2013 framed the following points
for consideration:
1. Whether the prosecution has proved that
there is a valid sanction order to
prosecute the accused?
2. Whether the prosecution has proved
beyond all reasonable doubt that prior to
06.07.2012 the accused being a public
servant viz., Assistant Executive
Engineer, HESCOM, City Sub-Division,
Vijapura demanded Rs.5,000/- from the
complainant Khajabandenawaz Hundekar
the Electrical First Class Contractor as a
motive or reward for putting signature to
the completion report including the supply
agreement and estimation and received
Rs.1,000/- in advance and on 06.07.2012
at 1.30 the accused, in his chamber in the
above said office, has accepted the
remaining bribe amount of Rs.4,000/- as
demanded earlier from the complainant
and thereby, the accused has committed
the offence punishable U/s.7 of the Act?
3. Whether the prosecution has proved
beyond reasonable doubt that on the
above said date, time and place, the
accused by abusing his official position
committed criminal misconduct by
obtaining the pecuniary advantage of
Rs.5,000/- from the complainant for doing
the official favour and thereby, the
accused has committed the offence
U/Sec.13(1)(d) punishable U/Sec.13(2) of
the Act?
4. What order?
13. The criminal Court considering the case of the
prosecution who were examined as PWs.1 to 5 and the
documents produced by the prosecution has held that the
demand of bribe money is not proved by the prosecution and
the relevant paragraph of the order of the criminal Court reads
as under:
12. PW-1 is the complainant and the complaint
said to have been lodged by him in the Lokayukta
Police station has been marked as Ex.P-1. In Ex.P-1,
it is stated that the complainant is working as
Electrical Class-I Contractor. He has done the
electrical work in respect of three houses in plot
No.23 in R.S.No.270 of Makbulahamad S/o
Mahamadhusain Bhakshi r/o Nagarbavadi, two
house in plot No.22 in R.S.No.270 of Riyazahamad
S/o Murtujasab Tamadaddi r/o Nagarbavadi, one
house in Plot No.22 in R.S.No.269 of Mahamadyusuf
S/o Jainuddin Patel and one house in plot No.21 of
Smt.Tasimabanu W/o Mahamadshafiq Dapedar and
only the work of fixing the electrical meters was
pending. The house owners stated above had
entrusted the electrical works of their house in his
favour. The applications were also given to the KEB
for giving the electric connection and the Section
Officer No.3 inspected the houses for which the
electrical connection was sought and gave the report
that four electric poles have to be erected and in that
respect, the complainant was directed to deposit
Rs.3,814/- and the same was deposited on
23.4.2012. In the complaint, it is further stated that
the erection of poles (4) was approved by the
concerned officers and with the relevant records, the
complainant met the accused who is working as
Assistant Executive Engineer Sub- Division No.2
HESCOM, Vijayapura and asked him to sign
"CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢" for getting electric
connection to all the above said houses and the
accused told him that if he comes in empty hands
work can not be done and the complainant has to
give bribe of Rs.5,000/-. In the complaint, it is further
stated that on 3.7.2012 he met the accused and
gave him Rs.1,000/- bribe amount and the accused
asked him to come with the balance bribe amount of
Rs.4,000/- along with RTC extracts and he has
recorded the conversation that took place between
himself and the accused at that time, over mobile
phone and the memory chip of that mobile is also
given to the Lokayukta Police. In Ex.P-1 it is also
stated that as the complainant had to arrange for the
balance amount of Rs.4,000/- there is a delay in
lodging the complaint. Thus, according to the
complaint, the accused has demanded bribe amount
of Rs.5,000/- and received Rs.1,000/- on 3.7.2012
and as the complainant was not willing to give the
bribe amount, he has lodged the complaint to the
Lokayukta police on 6.7.2012.
13. PW-1 is the complainant and in his
evidence he has deposed that he is working as
Class-I Electrical Contract from last 15 years and he
had undertaken the electrical works of the houses of
Allabax Tamadaddi, Shameembanu Dapedar,
Bakshi and Patel. He has deposed that he had filed
the applications of the house owners for supply of
electricity connection and those applications were
sent to the Section Officer and the Section Officer
came to the spot and made inspection and gave the
report that four new electric poles have to be erected
and in that respect 10% of the charges for erecting
the poles has to be deposited and accordingly, the
complainant deposited Rs.3,800/- and odd and after
the same, the erection of the poles was approved.
He has deposed that afterwards he approached the
accused who was working as Assistant Executive
Engineer in HESCOM, Sub-Division-2, Vijayapura
and the accused told that the complainant has to
approach the Technical Assistant and the Technical
Assistant has to verify the documents and all the
customers should come before him and sign the
agreement. He has deposed that on the next day he
took the customers to the office of the accused and
approached the Technical Assistant and asked the
Technical Assistant to take the signatures of the
customers and the Technical Assistant told that the
documents are not complete and after giving the
complete documents, she will put her initial. He has
deposed that he told the matter to the customers and
his customers thought that officers want bribe
amount and his customers took him to Lokayukta
PS. He has further deposed that he had not recorded
any conversation between himself and the accused
in his mobile and he had not taken his mobile
containing that conversation to the Lokayukta Police.
He has deposed that the Lokayukta Police told him
that complaint has to be given and he has signed
Ex.P-1 as per Ex.P-1(a). Thus, PW-1 has not at all
deposed as per the averments made in the
complaint. In other words, he has not at all deposed
that the accused on 3.7.2012 demanded the bribe
amount from him for signing the "CAzÁd£ÀÄß M¼ÀUÉÆAqÀ
¸ÀªÀiÁ¥À£À ªÀgÀ¢" and received advance amount of
Rs.1,000/- on 3.7.2012 and also received the
balance amount of Rs.4,000/- on 6.7.2012. Hence,
he has been treated as hostile witness by the
prosecution and cross examined him.
14. In his cross-examination by the
prosecution, he admits about the Lokayukta police
conducting the entrustment panchanama, but he has
deposed that the amount of Rs.4,000/- was not paid
by him, but it was paid by his customers to the
Lokayaukta Police. He has deposed that the
accused has not demanded the bribe amount of
Rs.5,000/- from him for signing the above said
document. He has deposed that he has not at all
paid Rs.1,000/- to the accused and that the accused
had not told him to bring Rs.4,000/- with RTC
extracts. He has deposed that the police have not
seized the 2 GB memory card which was in his
mobile. He has deposed that after the entrustment
panchanama, the tainted currency notes of
Rs.4,000/- was kept in his shirt pocket and he was
asked to go to the office of the accused and if the
accused demands for bribe amount then he has to
give the tainted currency notes to the accused and
afterwards, he has to give the signal to the
Lokayukta Police.
15. He has further deposed that he went to
the office of the accused at about 1.15 P.M and told
the accused that he has brought the RTC extract and
also told that he has brought Rs.4,000/- as told
earlier and the accused told him to keep the amount
and the file beneath the tray which was on his table
and he did so and afterwards he gave the
prearranged signal. He has deposed that he does
not know whether PW-2 was sent along with him to
the chamber of the accused to know the
conversation that takes place between himself and
the accused. He has deposed that after he gave the
signal the Lokayukta police came to the chamber of
the accused and the hands of the accused were
washed in sodium carbonate solutions and the
solutions turned to pink colour and those solutions
are at MOs-5 and 6. It is pertinent to note that PW-1
has not at all deposed that the accused touched the
amount and according to the evidence of PW-1 he
himself had kept the amount beneath the tray as told
by the accused. If that is so, the sodium carbonate
solution regarding the hand wash of the accused
being positive does not arise at all. But as stated
above, PW-1 has deposed that the hand wash of the
accused was positive. He has deposed that he has
not at all recorded the conversation that took place
between him and the accused when he had gone to
the chamber of the accused after lodging the
complaint as stated above. He has deposed that the
accused has not at all received the amount from him
and he has not counted the same with his hands and
not kept them beneath the tray. As stated above,
PW-1 has not at all deposed that the accused
demanded bribe amount for doing official favour.
16. In his cross-examination he has deposed
that the Technical Assistant of the accused had not
yet signed the "CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢". He
also admits that the accused has to sign the same
only after his Technical Assistant puts her signature
to the same. He also admits that as per the KEB
Rules every customer who wants electric connection
has to execute the bond paper before the Assistant
Executive Engineer. He has deposed that he himself
had taken the signatures of the customers to the
bond papers and took those bond papers to KEB
Office, for which the accused objected on the ground
that those bond papers have to be executed before
him only and in that respect there was some quarrel
between himself and the accused. He has further
deposed as follows;
"DgÉÆæUÉ ºÀt vÉUz
É ÀÄPÉÆAqÀÄ PÉ®¸À ªÀiÁrPÉÆr
CAvÁ PÉýzÀj
Ý AzÀ CzÀPÉÌ CªÀ£ÀÄ M¯Éè CA¢zÀj
Ý AzÀ ºÀt ªÀÄvÀÄÛ
¥sÉå¯ï mÉÃæ PɼÀUÉ EmÉÖ JAzÀgÉ ¤d."
17. If the above said evidence of PW-1 is
taken into consideration then, it has to be said that
the accused has refused to receive any bribe amount
from PW-1, even when PW-1 asked the accused to
take the amount and do the work. Thus, according to
the evidence of PW-1, PW-1 himself has kept the
amount and file beneath the tray which was on the
table of the accused. Thus, the evidence of PW-1 is
not in accordance with his complaint and also in
accordance with the prosecution case and it does
not prove the demand nor acceptance of the bribe by
the accused from PW-1 to do the official favour.
18. PW-2 is one of the pancha witness by
name Ravindra Putpak and he has deposed that in
the year 2012 he was working in the Health
Department. He has deposed that on 6.7.2012 as
per the direction of his higher officer he went to the
Lokayukta office, Vijayapura and in the Lokayukta
Office another pancha witness and the complainant
were present and the P.I introduced them to him. He
has deposed that he came to know about the
complaint lodged by the complainant. He has
deposed that the P.I played the conversation that
was recorded in the mobile and in that conversation
there was demand of bribe. As stated above, PW-1
who is the complainant denies the same. PW-2 has
deposed that the memory card which was in that
mobile was put into a cover and sealed and that
memory card is at MO- 11. He has further deposed
that the conversation which was in the memory card
was copied to a C.D and that C.D is at MO-12. As
stated above, PW-1 himself has not at all deposed
about the MOs-11 and 12.
19. PW-2 has further deposed that the
complainant produced Rs.4,000/- (eight notes of the
denomination of Rs.500/- each) and the Lokayukta
Police smeared phenolphthalein powder to them. He
has further deposed that those notes were given to
the second pancha by name Subhashchandra
Nagappa Pujari and he kept them in the
complainant's shirt pocket and afterwards, his hands
were washed in the sodium carbonate solution and
that solution turned to pink colour and that solution is
at MO-1. He has deposed that the sample
phenolphthalein powder and sodium carbonate
powder were also seized and they are at MOs-2 and
3 respectively. He has deposed that at the time of
entrustment mahazar, eight photographs were taken
and they are at Ex.P-2 to P-9 and the entrustment
mahazar is at Ex.P-10 and his signature is at Ex.P-
10(b).
20. PW-2 has further deposed that
afterwards the police inspector took him, the
complainant, another pancha and staff to KEB
Office, Vijayapura and the P.I told the complainant
that he has to meet the accused and request for his
work and if the accused asked for bribe amount, then
the tainted currency notes kept in his shirt pocket
should be given and the complainant should record
the conversation that takes place between him and
the accused at that time and in that respect the P.I
gave a voice recorder to PW-1 the complainant. As
stated above, PW-1 contends that no voice recorder
was given to him and he has not recorded the
conversation between himself and the accused. PW-
2 has further deposed that he was asked to go along
with the accused to see what would happen. He has
deposed that himself and the accused went together
to the chamber of the accused and sat infront of the
accused and the accused asked PW-1 as to who is
PW-2 and the complainant told that PW-2 is the
person working along with him and the complainant
gave three or four files to the accused and the
accused signed those files and afterwards, the
complainant gave the tainted currency notes of
Rs.4,000/- to the accused and the accused kept that
amount beneath the tray which was on his table. It is
pertinent to note that PW-1 himself has not stated
that he had taken PW-2 with him to the chamber of
the accused and PW-2 sat by his side opposite to
the accused and the accused asked who is PW-2
and PW-1 told that PW-2 is working with him. It is
also not the case of the prosecution that the accused
put his signatures to three - four files which were
given by the complainant. PW-2 has further deposed
that afterwards the complainant went out side the
chambers of the accused and gave the signal and
the police inspector came to the chamber of the
accused along with his staff and another panch and
washed the hands of the accused in the sodium
carbonation solutions separately and those solutions
turned into pink colour and those solutions are at
MOs-5 and 6. He has deposed that the police
inspector got the amount from the accused and
those notes were the same notes which were
mentioned in the entrustment panchanama. It is
pertinent to note that in case the notes which were
kept beneath the tray, were taken by the police
inspector through the accused, then there is every
possibility of the hand wash of the accused being
positive. He has further deposed that the table cloth
and the tray were also seized which are MOs-9 and
10.
21. PW-2 has deposed that while going to
the office of the accused a tape recorder had been
given to the complainant and the complainant also
recorded the conversation that took place between
himself and the accused and that conversation was
played and it was copied to a C.D and that C.D is at
MO-13. It is pertinent to note that PW-1 himself does
not speak about the above said evidence given by
PW-2. PW-2 has deposed that the trap panchanama
is at Ex.P-25 and his signature is at Ex.P-25 (b). He
has deposed that at the time of trap panchanama
Lokayukta Police took 12 photographs and those
photographs are at Ex.P-13 to P-24.
22. It is pertinent to note that even in his
evidence, PW-2 has not at all deposed that the
accused demanded the complainant to give the bribe
amount. He has only deposed that the complainant
gave three or four files to the accused and the
accused signed them and afterwards PW-1 himself
gave Rs.4000/- to the accused and the accused kept
that amount beneath the tray. Thus, even in his
evidence PW-2 has not deposed that the accused
demanded and accepted the bribe amount from PW-
1 for doing official favour.
23. PW-3 Shrishailappa Sarashetti is the
Assistant Executive Engineer and he has deposed
that he has prepared the sketch of the scene of
occurrence as per Ex.P-27 and the scene of
occurrence was shown to him by PW-2 and the
official of Lokayukta Police, Vijayapura by name
S.I.Gidaganti.
24. PW-4 Sanganabasappa Naragund has
deposed that from 3.2.2011 to 30.10.2012 he was
working as Assistant Executive Engineer in
HESCOM, Vijayapura and at that time, the accused
was working as Assistant Executive Engineer, Sub
Division - 2. He has deposed about the procedure to
be followed by a customer who seeks new electric
connection to his house and it is as follows;
"ºÉƸÀ «ÄÃlgï «zÀÄåvï ¸ÀA¥ÀPÀð PÀ°¸
à À®Ä CfðzÁgÀgÀÄ
¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀ PÀZÃÉ jUÉ §AzÀ
gÀÆ.50-00 £ÉÆAzÀt ªÀiÁqÀrPÉÆAqÀÄ ¸ÀA§AzÀ¥
s ÀlÖ
±ÁSÁ¢üPÁjUÀ½UÉ PÀ¼ÀÄ»¹ PÉÆqÀ¨ÃÉ PÀÄ. ±ÁSÁ¢üPÁj ¸À¼
Ü À
¥Àj²Ã®£É ªÀiÁr CzÀPÉÌ ¨ÉÃPÁUÀĪÀ ¸ÁªÀÄVæUÀ¼À §UÉÎ CAzÁdÄ
¥ÀwP
æ É vÀAiÀiÁj¹ ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀjUÉ
ªÀÄgÀ½ PÀ¼ÀÄ»¹ PÉÆqÀÄvÁÛg.É ¸ÀzÀj PÉ®¸À £ÀªÀÄä ªÁå¦ÛAiÀÄ°è EzÀg
Ý É
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Ý É PÁAiÀÄð¤ªÁðºÀPÀ
C©üAiÀÄAvÀgÀgÀ §½ ¥sÉÊ®£ÀÄß PÀ¼ÀÄ»¹PÉÆqÀÄvÉÃÛ ªÉ. PÀA§
ºÁPÀĪÀÅ¢zÀg
Ý É PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀ ªÀÄAdÆgÁw
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CfðzÁgÀjAzÀ vÀÄA©¹PÉƼÀÄv
î ÃÉÛ ªÉ. vÀÄA©zÀ £ÀAvÀgÀ
ªÉÄïÁ¢üPÁjUÀ½UÉ w½¹ PÉ®¸À ªÀiÁqÀ®Ä ¥Àgª
À Á¤UÉ
PÉÆqÀ¨ÃÉ PÉAzÀÄ PÉÆýPÉƼÀÄv
î ÃÉÛ ªÉ. ¸ÀzÀj ±ÀÄ®Ì vÀÄA©zÀ £ÀAvÀgÀ
CfðzÁgÀgÀÄ gÀÆ.200-00 ¨ÁAqï ¥ÉÃ¥ÀgÀ£À°è DåVæªÉÄAmï ¥ÀvÀæ
§gÉzÀÄPÉÆqÀÄvÁÛg.É PÉ®¸À DzÀ £ÀAvÀgÀ ¥ÀÅ£ÀB ±ÁRÁ¢üPÁj
CAzÁdÄ ¥ÀwP
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æ ÁgÀ PÁªÀÄUÁj ªÀÄÄUÀ¢zÉ E®èªÉÇà CAvÁ
¸À¼
Ü À ¥Àj²Ã®£É ªÀiÁr £ÀªÀÄUÉ ªÀgÀ¢ ¸À°¸
è ÀÄvÁÛg.É "
In his cross-examination he has deposed as follows;
"¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀ PÉÊPɼÀUÉ
M§âgÀÄ vÁAwæPÀ ¸ÀºÁAiÀÄPÀgÀÄ PÉ®¸À ªÀiÁqÀÄvÁÛg.É ªÉÄÃ¯É ºÉýzÀ
CAzÁdÄ ¥ÀwP
æ A
É iÀÄ£ÀÄß (CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢)
vÁAwæPÀ ¸ÀºÁAiÀÄPÀ ¥Àj²Ã°¹ £ÀªÀÄä ¥Àj«ÄwUÉ M¼À¥Àlg
Ö É £ÁªÀÅ
ªÀÄAdÆgÁw PÉÆqÀÄvÉÃÛ ªÉ ªÀÄvÀÄÛ £ÀªÀÄä ¥Àj«ÄwVAvÀ ºÉa£
Ñ À
CAzÁdÄ ªÉÆvÀÛ EzÀg
Ý É «¨sÁUÀ PÀZÃÉ jUÉ PÀ¼ÀÄ»¸ÀÄvÉÃÛ ªÉ. .......... . . .. .
. . . . . . . . . . . . . . . . . .ªÉÄÃ¯É ºÉýzÀ CåVæªÉÄAl£ÀÄß UÁæºÀPÀgÀÄ
¸ÀA§AzÀ¥
s À lÖ ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀ
¸ÀªÀÄPÀª
ë ÀĪÉà ¸À» ªÀiÁqÀ¨ÃÉ PÁUÀÄvÀz
Û À.ë
25. In this case, the prosecution has
produced the attested copies of the documents
regarding seven electrical connections sought by the
complainant and they are together marked as Ex.P-
11. The file Ex.P-11 contains the copies of CAzÁd£ÀÄß
M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢ in respect all the customers
stated by the complainant in his complaint, which are
signed by the Section Officer only and they are not
signed by the customers and also by the Assistant
Engineer or the Assistant Executive Engineer. PW-4
has deposed that on the above said documents both
the Technical Assistant/Assistant Engineer and the
Assistant Executive Engineer have to sign. He has
further deposed as follows;
"vÁAwæPÀ ¸ÀºÁAiÀÄPÀgÀÄ ¸À» ªÀiÁqÀzÀ ºÉÆgÀvÀÄ
¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ ¸À» ªÀiÁqÀ®Ä
§gÀĪÀÅ ¢®è"
Hence, it has to be said that in respect of the
CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢ the Technical
Assistant of the accused has to sign the same and
afterwards only it has to be signed by the accused.
As stated above, the Technical Assistant had not yet
signed the above said CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À
ªÀgÀ¢ and hence, the question of the accused signing
them does not arise at all. It is not the case of the
prosecution that the accused had demanded the
bribe amount for getting the signatures of himself
and the signatures of the Technical Assistant to the
above said reports.
26. The Technical Assistant/Assistant
Engineer who was working under the accused at the
relevant point of time is examined as PW-5. PW-5
Shobha Aherikar has deposed that in the year 2012
she was working as Assistant Engineer, HESCOM,
City Sub-Division -2, Vijayapura and she knows the
complainant who was working as Class-I electrical
contractor. She has deposed that her room is
adjacent to the room of the accused in the office at
Vijayapura. She has deposed that on 6.7.2012 when
she came out of her room she saw the Lokayukta
police taking the accused with them and she does
not know why the Lokayukta police took the accused
with them. As stated above, according to the
evidence of PW-4, PW-5 should have signed the
above said CAzÁd£ÀÄß M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢ and
afterwards only the accused has to sign the same.
As stated above, the above said CAzÁd£ÀÄß M¼ÀUÉÆAqÀ
¸ÀªÀiÁ¥À£À ªÀgÀ¢ found in Ex.P-7 are not signed by PW-5
and also by the accused. Thus, it is the case of the
accused that unless the above said CAzÁd£ÀÄß
M¼ÀUÉÆAqÀ ¸ÀªÀiÁ¥À£À ªÀgÀ¢ is signed by PW-5 he was not
able to sign the same and PW-5 was required to sign
the same after verifying all the documents and
afterwards only he has to sigh them. Thus, it is the
case of the accused that the files were not at all put
up before him by PW-5 and no work of the
complainant was pending before him. PW-5 has
been treated as hostile witness by the prosecution
and cross-examined and even in her cross-
examination she has not given any evidence which is
of any help to the prosecution case. She has
deposed that she has not seen the police seizing the
file of the customers of the complainant mentioned in
the complaint. She has deposed that she has signed
Ex.P-11 which are the copies of the documents in
respect of electrical connections of the customers of
the complainant. She has deposed that she has not
stated before the police as per Ex.P-28, P-28 (a) and
28 (b).
27. PW-6 Riyazahamad Tamadaddi who is
one of the customer of the complainant has deposed
that he had entrusted the electrical work of his house
to the complainant and he had sought for two
electrical connections, but he does not know
anything about the accused demanding for bribe
form the complainant for giving the electrical
connections. He has been treated as hostile witness
by the prosecution and he has deposed that he has
not stated before the police as per Ex.P-29.
28. PW-8 is the Lokayukta Inspector who has
laid trap and who has also investigated this case. He
has deposed that from November 2010 to
September 2013 he worked as Inspector in
Lokayukta PS, Vijayapura and on 6.7.2012, PW-1
came to the police station and gave the written
complaint as per Ex.P-1. He has deposed that at that
time, PW-1 produced his mobile wherein he had
recorded the conversation between himself and the
accused and when he heard that conversation he
came to know that there is demand for bribe. He has
deposed that he registered the case on the basis of
Ex.P-1 and sent the FIR to the court as per Ex.P-31.
29. PW-8 has further deposed that he
secured the panchas to the police station and
introduced them to the complainant. He has deposed
that the conversation recorded in the mobile was
played through laptop and it was heard by the
panchas and the CD containing that conversation
was also seized. He has deposed that the
complainant produced Rs.4000/- (eight notes of the
denomination of Rs.500/- each) and his staff
smeared phenolphthalein powder to the same and
afterwards sodium carbonation solution was
prepared and one of the pancha was asked to
immerse his hands in the said solution and when he
did so there was no change in the colour of that
solution and afterwards the other pancha was given
notes smeared with phenolphthalein powder and
asked to count the same and keep the same in the
left side shirt pocket of PW-1 and he did so. He has
further deposed that afterwards the hands of that
pancha were washed in the sodium carbonate
solution and that solution turned to pink colour and
that solution was poured into a bottle and sealed and
the same is at MO-1. He has further deposed in
detail about the entrustment panchanama which has
been marked as Ex.P-10.
30. PW-8 has further deposed that he gave a
voice recorder to the complainant and told the
complainant that he should again approach the
accused and request for his work and in case the
accused demands money for doing his work he has
to give the tainted currency notes kept in his shirt
pocket and he should also record the conversation
that takes place between himself and the accused at
that time. He has deposed that the complainant was
asked to give the signal after the accused accepts
the bribe amount and afterwards all of them went in
the Govt. Jeeps to KEB Office and the complainant
and PW-2 were sent inside the office of the accused
and himself, his staff and another pancha stood
outside the office. He has further deposed that he
has also told PW-2 that he should hear the
conversation between the accused and the
complainant and also see where the accused keeps
money in case he receives money from PW-1.
31. PW-2 has further deposed that after
some time, PW-1 came out side the chamber of the
accused and gave signal and hence, immediately
himself, other pancha, his staff went inside the
chamber of the accused and the complainant
showed the accused as the B.B.Halli the Assistant
Executive Engineer and told that the accused has
received the bribe amount of Rs.4,000/- from him.
He has deposed that the complainant told him that
the accused received Rs.4,000/- from him, counted
the same and kept the same beneath the tray. He
has further deposed that he got prepared the sodium
carbonate solutions and washed the hands of the
accused separately in the said solutions and the said
solutions turned to pink colour and those solutions
are at MOs-5 and 6. He has deposed that he asked
the accused to produce the bribe amount and the
accused produced the amount which was kept
beneath the tray and they are the same currency
notes mentioned in the entrustment panchanama.
He has deposed that he also seized copies of some
documents which were on the table of the accused
pertaining to the work of the complainant. He has
deposed that the complainant PW-1 gave the voice
recorder and it was played and the said voice
recorder contained the conversation that took place
between the accused and PW-1. He has deposed
that the accused gave his written say as per Ex.P-
12. He has deposed that the conversation recorded
in the voice recorder has been reproduced in the trap
panchanama which is at Ex.P-25. It is pertinent to
note that PW-2 has not at all deposed about the
conversation or any portion of the same mentioned
in Ex.P-25. In fact PW-2 has not at all deposed that
the accused demanded the money from the
complainant.
32. PW-8 has deposed that he has not at all
recorded the sample voice of the accused and he
has not sent the CDs MOs-12 and 13 to FSL along
with the sample voice of the accused to ascertain
whether there is the voice of the accused in the
above said CDs or not. He has deposed that he has
not sent MO-11 2 GB memory card to FSL to
ascertain whether it contains the voice of the
accused or not.
33. PW-4 has deposed that in the police
station two CDs were played and he identified that
those CDs contain the voice of the accused, but he
has not deposed that those CDs are Ex.P-12 and P-
13. The CDs Ex.P-12 and P-13 are also not played
before the court when the evidence of PW-4 was
recorded. As stated above, PW-4 has also not
deposed that CDs which were played in the police
station were MOs-11 and 12 which contained the
voice of the accused. In the absence of the same
and in the absence of I.O not sending MOs-1 to 13
along with the sample voice of the accused, it can
not be said that the prosecution has proved that the
voice of the accused is found in Ex.P-11 and P-12. In
the absence of the same, Ex.P-11 to P-13 have no
evidentiary value and they can not be considered at
all to prove alleged demand for bribe by the accused.
34. As stated above, there is no
corroboration between the evidence of PWs-1 and
2. As stated above PW-2 has also not deposed that
the accused demanded money from PW-1. It is the
case of the accused that the complainant himself
had kept the notes beneath the tray without his
knowledge and he never demanded or accepted any
bribe amount from PW-1. No doubt according to the
case papers, the hand wash of the accused is
positive, but on that ground only it can not be said
that the prosecution has proved the demand and
acceptance of bribe by the accused beyond all
reasonable doubt.
35. The learned counsel for the accused
relies upon the decision reported in IV (2015) CCR
57 (SC) in P.Satyanarayana Murthy V/s. Dist.
Inspector of Police and another, wherein the Hon'ble
Supreme Court has held as follows;
"Prevention of Corruption Act
1988- Sections 13 (1)(d) (i), 13 (1)(d)(ii),
13 (2) - Illegal Gratification - Mere
possession and recovery of currency
notes from accused without proof of
demand would not establish an offence
under Sections 7 as well as 13 (1)(d)(i)
and 13 (1)(d)(ii) of Act - Proof of demand
of illegal gratification is gravamen of
offence under Sections 7 and 13 (1)(d)(i)
and 13 (1)(d)(ii) of the Act and in absence
thereof, charge would fail - Mere
acceptance of any amount allegedly by
way of illegal gratification or recovery
thereof, dehors proof of demand, ipso
facto, would not be sufficient to bring
home chrge under these two sections of
the Act - Prosecution not able to prove
factum of demand beyond reasonable
doubt - Impugned judgment and order of
High Court set aside.
36. He also relies upon the decision reported
in IV (2015) CCR 173 (SC) in N.Sunkanna V/s. State
of Andhra Pradesh, wherein it is held as follows;
"Prevention of Corruption Act,
1988 - Sections 7, 13 (1)(d), 13 (2), 20 -
Illegal Gratification - Legal presumption -
Complainant himself had disowned his
complaint and has turned hostile - There
is no other evidence to prove that accused
had made any demand - Only other
material available is recovery of tainted
currency notes from the possession of
accused - Mere possession and recovery
of currency notes from accused without
proof of demand will not bring home
offence under section 7 since demand of
illegal gratification is sine qua non to
constitute offence - It is only on proof of
acceptance of illegal gratification that
presumption can be drawn under Section
20 of the Act that such gratification was
received for doing or forbearing to do any
official act - Unless there is proof of
demand of illegal gratification proof of
acceptance will not follow - Primary facts
on the basis of which legal presumption
under Section 20 can be drawn are wholly
absent - Judgments of Courts below are
liable to be set aside - Appellant
acquitted."
37. Thus, in the above said decisions, it is
held that mere possession and recovery of currency
notes from the accused without proof of demand
would not establish an offence U/s.7 as well as u/s.
13 (1)(d) r/w.Sec.13 (2) of the Act.
38. The learned counsel for the accused also
relies upon the decision reported in 2014 Cri. L. J
2433 in B.Jayaraj V/s. State of A.P., wherein it is
held as follows;
" (A) Prevention of Corruption Act
(49 of 1988), Ss.17, 13 -Bribery case -
Demand of gratification - Proof -
Complainant disowning to have made
complaint - No other evidence adduced
by prosecution to prove demand-Demand
of gratification can not be held to be
proved only on basis of complaint filed
and evidence of panch witness - IN
absence of proof of demand mere
recovery of tainted money from accused -
Not sufficient for his conviction.
(B) Prevention of Corruption Act
(49 of 1988), S.20 - Presumption that
gratification was received for doing or not
doing official Act - Precondition for raising
- Proof of acceptance is essential -
Presumption under S.20 is limited to
offence under S.7 - Does not apply to
offence under S.13."
39. The Hon'ble Supreme Court in the case
of N.Sunkanna V/s. State of Andhra Pradesh has
held that unless there is proof of demand of illegal
gratification, the legal presumption U/s.20 can not be
drawn.
40. The learned counsel for the accused also
relies upon the decision reported in 2012 (2) KCCR
1157 in Sri.Hanumanthapa V/s. State of Karnataka,
wherein it is held as follows;
"A. Prevention of Corruption Act, 1988 -
Section 7, 13 (1)(d) r/w.Sec.13 (2) - Acquittal - Trial
Court convicted the accused on the basis of
evidence of shadow witness coupled with the
evidence of Investigating officer - Held, shadow
witness evidence is not supported by complainant
with any material particulars. The trial court could not
have banked upon the evidence of shadow witness
to convict the accused"
41. The learned counsel for the accused also
relies upon the decision reported in 2014 (4) Crimes
567 (SC) and in para 9 of the said judgment it is held
as follows;
"We have bestowed our
consideration to the rival submissions
and we find substance in the submission
of Mr.Rao, learned counsel for the
appellant. The informant PW-1 during the
course of trial has nowhere stated that
any demand was made by the appellant.
So also, the trap witness, PW-2, PW-1
has gone to the extent of saying that as
the matter was being adjourned on
several dates, he thought that the
appellant will not do his work unless he
bribed him with cash and with this notion,
he went to meet the appellant, gave
money, which he refused. Merely because
this witness has admitted to have given
the report alleging demand of bribe by the
appellant would not be sufficient to hold
that he made such a demand. In the
present case, the prosecution attempted
to prove the guilt of the appellant by direct
evidence. The informant PW-1 and
shadow - witness PW-2 made statements
before the court which were quite different
from the one made by them during the
course of investigation. In the light of
aforesaid the demand and acceptance
can not be said to have been proved in
accordance with law. In the state of
evidence, we feel it unsafe to sustain the
conviction of the appellant. Accordingly,
we give him the benefit of doubt."
The facts of the said case is almost similar to
the facts of this case.
42. The learned counsel for the accused also
relies upon the decision reported in I(2016) CCR 121
(SC) in Krishan Chander V/s. State of Delhi, wherein
it is also held that demand for bribe money is sine
qua non to convict the accused for the offences
punishable U/s. 7 and 13 (1) (d) r/w.Sec.13 (2) of the
Act. In this case, as stated above, even though in the
complaint it is mentioned that the accused
demanded the bribe amount, the complainant in his
evidence has denied the same. As stated above,
there is no corroboration between the evidence of
PWs-1 and 2 and in fact PW-1 has turned hostile to
the prosecution case.
For all the reasons stated above, I hold that
the prosecution has failed to prove beyond all
reasonable doubt that the accused has demanded
bribe amount and also accepted the same from PW-
1 to show the official favour and the benefit of doubt
has to be given to the accused. Hence, I answer
point Nos.2 and 3 in the negative.
43. Point No.4 :- In view of my findings on
the points Nos.1 to 3 as above, I pass the following;
ORDER
The accused is acquitted U/Sec. 235 (1) of
Cr.P.C for the offences punishable U/ss. 7 and 13 (1)
(d) r/w. sec. 13 (2) of the Prevention of Corruption
Act, 1988.
His bail bond and surety bond shall stand
cancelled.
MO-14 cash of Rs.4,000/- (eight notes of the
denomination of Rs.500/- each) is ordered to be
confiscated to the Government and MOs-1 to 13 are
ordered to be destroyed after expiry of appeal
period."
14. Thus, from the judgment of the criminal Court, it is
clear that the prosecution has failed to establish the guilt of the
accused beyond all reasonable doubt.
15. The departmental enquiry was held by the
department from 2013 till 2019, even after the acquittal of the
petitioner in the criminal Court which is not in dispute.
Respondent No.2 by its order dated 19/10/2019 has held as
follows:
2. The averments made in the
recommendation dated 08.03.2019 are all
opposed to principles of natural justice, law
and facts. The averments made in the
recommendations are false, frivolous, and
not warranted under the circumstances. The
averments made in Para (3) to (7) of the
recommendations are not based on
conclusive proof and they are only the views
or the reasons given against the facts and
circumstances of the case, which are not
tenable in the eye of law.
3. I submit that as per Rule 14A2(e) of
the Karnataka Civil Service (CCA) Rules
1957, the Government shall be the
Disciplinary Authority to impose any of the
penalties specified in Rule 8(vi) therefore the
Hon'ble Upa-Lokayukta has no power to
recommend regarding imposition or quantum
of the punishment to be awarded, it is held in
writ Appeal No.8594/2012(S-RES) by the
Hon'ble High Court of Karnataka, Bengaluru
dated 18.02.2015 that "..... The
Upalokayukta has appointed an inquiry
Officer to conduct enquiry and after receipt
of the report from the Enquiring Officer, he
shall refer the matter to the Disciplinary
Authority to take action but, the
Upalokayuktha has no power to sit in
judgment over the report of the Enquiry
Officer. The recommendations made by the
Upa-Lokayuktha to impose penalty is bad in
law and not sustainable in law ....". In this
case without looking the facts and
circumstances of the case, the Hon'ble Upa-
Lokayuktha accepted the findings of the
Enquiry Officer which is bad in law.
4. So also it is submitted that in
reference to the decision of our Karnataka
High Court held in a reported case 2017(3)
AKR 48 in C.Krishnamurthy v. State of
Karnataka and others-Constitution of India,
Arts.311, 309-Karnataka Civil Services
(Classification, Control and Appeal) Rules
(1957), R14-A(2)(d)-Disciplinary
proceedings-recommendation of Upa
lokayukta - is not found - it is for disciplinary
authority to consider matter and make final
order (Para 4).
5. It is stated in the decision that the
Disciplinary Authority is at liberty to disagree
with the findings recorded by the Enquiry
Officer. The Recommendation of the Upa-
Lokayukta by giving reasons to record its
own findings for imposing the penalty of
compulsory retirement from service of the
DCO and also for imposing penalty of
permanently withholding 20% of pension
payable to DCO Sri Bheemaraya Basappa
Halli, does not warranted, in view of the fact
that it is for the Disciplinary Authority to
Consider the matter and make a final order.
So the recommendation to the Disciplinary
authority does not warranted. The copies of
the above citations are submitted for favour
of kind perusal.
6. It is submitted that the alleged charge
against the me is as follows:
The DCO while working as Assistant
Executive Engineer (Ele), City Sub-Division-
2, HESCOM, Bijapur, demanded and
accepted a bribe of Rs.4000/- on 06.07.2012
from the complainant Sri.Khajabandhenavaj,
First Grade Electrical Contractor, Bijapur for
signing power supply agreement and
estimate report to get the electricity supply
connection that is for doing an official act.
Further it is alleged that the DCO failed to
maintain absolute integrity and devotion to
duty and committed an act which is
unbecoming of a Board Employee and thus
the DCO has committed misconduct under
Rule 31(1) of Karnataka Electricity Board
Employee (Conduct) Regulation 1988. This
charge totally denied by me.
7. It is submitted that during the course
of enquiry, the disciplinary authority has
examined in all PW-1 to PW4 and Exhibited
P-1 to P8, in answer to the enquiry I got
examined two defense witnesses and myself
got examined as D.W.2 and also produced
Ex.D1 to D6 and got examined another
witness by name Smt.Shobha Shankar
Aherikar as D.W.1 who is the then working.
Technical Assistant under me in my office
that is O/O of the AEE(Ele.), CSD-II,
HESCOM, Vijayapur.
8. It is submitted that the disciplinary
authority has examined (PW-1) the
complainant by name Khajabandewavaaj
S/o Sri.Mohammed Isaq Hundekar First
grade Electrical Contractor in this case, PW-
2 name Sri.Ravindra Puttpak as the shadow
witness, PW-3 by name Sri.Subhas Chandra
Poojari is examined as Co-Puncha, PW-4 by
name Sri.Chandrakhant is examined as IO in
this case.
9. It is submitted that on the basis of oral
and documentary evidence adduced by the
Departmental authority and the defence
placed by me the question arises for
consideration is that weather I have
committed a misconduct as stated in the
charge levelled against me.
10. It is submitted that to consider this
aspect of the matter the totality of evidence
is tobe taken into account to come to the
conclusion.
11. It is submitted that in written brief
submitted by me to the enquiry authority by
way of argument that, it is to be noted in
respect of proceedings under the prevention
of corruption act and in the KCS conduct
Rules the term misconduct is not at all
defined. It should be gathered on the
circumstances of the case and on the basis
of principles of natural justice and on the
basis of preponderance of probabilities, the
conclusions shall have to be arrived at, but
the principles of natural justice says that I
have not put to strict proof of my defence but
I may put forth the defence even on the
principles of preponderance of probabilities,
that is sufficient to establish my defence in
my Departmental enquiry Basing on these
principles, I am placing my arguments as
follows. It is to be seen that the main
purpose for laying the trap is to find out
whether the accused (DCO) commits the
misconduct or not. The pre-trap mahazar
shows the commencement of investigation,
It will nothing do with the DCO as he is
unaware of the Pre-trap proceedings, much
importance should not be given that such of
proceedings. It is well known facts that with
reference to rulings laid down by the
Supreme Court in AIR1974 SC 1516
Reghubir Sing v/s State of Hariyana - it is
well settled that laying of trap may be part of
investigation, when case is already
registered but it cannot be part of
investigation, where it is only to find out
whether, the offence is going to be
committed or not - basing on the same
guideline the IO PW-4 conducted the
investigation but it is his duty to find out in
the course of investigation whether the DCO
has committed misconduct by receiving
bribe amount or not or was there any
circumstance or occasion to receive the
bribe amount. If the mensria of DCO is not
found on the circumstances, the IO PW-4
could have filed "B" Report against the DCO
as no case is made out against him. But in
this case there is no such occasion has
come forth for having demanded the amount
by the DCO from the complainant (PW-1).
Under these circumstances instead of filing
"B" report, filed a false charge sheet against
me to show that the trap is found successful
so as please their higher authorities. On the
basis of the report, the corporation initiated
the Departmental enquiry in which false
allegations were made out against me.
12. It is submitted that the PW-1 is the
complainant and he is not at all supported
the case of the disciplinary authority and he
has entirely turned hostile. He himself said
in his examination chief itself that DCO has
never demanded and accepted the money
and without his knowledge on the direction
of the police, he has kept the amount below
the tray which was on the table of DCO.
This aspect of the matter entirely goes to
show that I have never demanded and
accepted the money from the complainant
as alleged in the charge. This material
evidence, which is favourable to me is not
considered by the Hon'ble enquiring
authority in their enquiry report and the
reasons have not been assigned by the
Hon'ble enquiring authority to discord this
evidence. For this reason, also the enquiry
report is not acceptable one. Even though
the demand is not proved by the evidence of
PW-1, the question of acceptance and
recovery of bribe amount does not arise at
all. This aspect of the matter is also not
taken into consideration by the enquiring
authority in their enquiry report. On this
score also the report is bad in low.
13. It is submitted that PW-2 who is
alleged to be the shadow witness in the case
also not supported the case of the D.A. he is
also entirely turned hostile. His evidence is
also not believable one. When there is on
corroborative evidence for demanding and
accepting the bribe amount by shadow
witness, it is to be concluded that the
disciplinary authority has not proved his
case, even on the preponderance of
probability. This material evidence has not
taken into consideration by the Hon'ble
enquiry officer in their enquiry report
Findings of the enquiry officer are all
perverse. On this ground the enquiry report
is not acceptable one.
14. It is also submitted that PW-3 by name
Sri.Subash Chandra Poojari is alleged to be
the co-puncha in this case also not
supported the case of DA, he is entirely
turned hostile. His evidence is also not
believable. It is to be concluded that the
disciplinary authority has not proved his case
even on the preponderance of probability.
This material evidence has not taken into
consideration by the Hon'ble enquiring
officer in their enquiry report. Findings of the
enquiring officer are all perverse. On this
ground also, the enquiry report is not
acceptable one. No proper findings have
been given in this report. For this reason
also enquiry report is not acceptable one.
15. The evidence of PW-1, 2 & 3 do not
establish the fact of demand, acceptance
and recovery of bribe amount. The evidence
of these three witnesses will not corroborate
with the evidence of IO PW-4. For these
reasons the self-serving testimony of
investigation officer should not be believed
as he is an interested person. No reasons
have been assigned to discord the evidence
of PW-1 to PW3, but it appears that wrongly
believing the evidence of I.O, the learned
enquiry officer wrongly come to the
conclusion by saying that the DCO is
committed misconduct. This finding is
further so that enquiry report is not
acceptable one.
16. Irrespective of the above evidence on
record, I field my defence statement U/S
KCS (CCA) Rule 11(16) and also got
examined myself as DW2 and also got
examined DW1 on behalf of defence and
produced Ex.D1 to D6 to establish the fact
that the complainant has filed the false
complaint against me. This aspect of the
matter is not taken into consideration by the
Hon'ble enquiry officer in his enquiry report.
17. To support defence version I hae
submitted my defence statement so also I
have deposed before statement so also I
have deposed before this Hon'ble enquiring
authority, as to when and how the power
supply agreement and estimate report is to
be signed and what are the procedure to be
followed before signing the above
documents. This procedure is narrated in
Para 4 to 11 of the examination in chief by
way of affidavit the same is reproduced for
favour of kind perusal.
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18. It is submitted that so also I have
further explained in my evidence by
examining myself as DW2 regarding the
circumstances at the time of incident of the
trap that may be looked in to in Para 12 and
13 of my evidence.
19. It is submitted that to establish the
defense of mine, I got examined Smt.
Shobha Shankar Aherikar as defence
witness at the relevant period of time who
was working as a Technical Assistant in my
office. She has stated in the her evidence.
The same is reproduced here for kind
perusal Examination in chief of DW1 in
Kannada.
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16. It is relevant to note that PW.1/complainant has
not at all supported the case of the disciplinary authority and
has specifically denied that the DCO/petitioner has demanded
and accepted any money and without his knowledge and on
the direction of the police, he has kept the amount below the
tray which was on the table of the DCO. PW.1 has clearly in
an unequivocal terms has contended that that there is no
acceptance and recovery of the bribe amount at the place of
occurrence of the incident.
17. PW.2 who is the shadow witness in the case has
also not supported the case of the disciplinary authority and
has denied the demanding and accepting of bribe by the
DCO/petitioner.
18. PW.3 by name Sri Subhash Chandra Poojari who
is also co-pancha has also not supported the case of the
disciplinary authority. The evidence of PWs.1 to 3 clearly
establish the fact that there was no acceptance, demand and
recovery of the bribe amount. Disbelieving this, the enquiry
officer has wrongly come to the conclusion that the
DCO/petitioner has committed the misconduct.
19. The Hon'ble Apex Court in the case of G.M.TANK
Vs. STATE OF GUJARAT, reported in (2006) 5 SCC 446,
which reads as under:
"30. The judgments relied on by the
learned counsel appearing for the
respondents are distinguishable on facts
and on law. In this case, the departmental
proceedings and the criminal case are
based on identical and similar set of facts
and the charge in a departmental case
against the appellant and the charge before
the criminal court are one and the same. It is
true that the nature of charge in the
departmental proceedings and in the
criminal case is grave. The nature of the
case launched against the appellant on the
basis of evidence and material collected
against him during enquiry and investigation and
as reflected in the charge-sheet, factors
mentioned are one and the same. In other
words, charges, evidence, witnesses and
circumstances are one and the same. In the
present case, criminal and departmental
proceedings have already noticed or granted on
the same set of facts, namely, raid conducted
at the appellant's residence, recovery of articles
there from. The Investigating Officer
Mr V.B. Raval and other departmental
witnesses were the only witnesses
examined by the enquiry officer who by
relying upon their statement came to the
conclusion that the charges were
established against the appellant. The
same witnesses were examined in the
criminal case and the criminal court on the
examination came to the conclusion that
the prosecution has not proved the guilt
alleged against the appellant beyond any
reasonable doubt and acquitted the
appellant by its judicial pronouncement
with the finding that the charge has not been
proved. It is also to be noticed that
the judicial pronouncement was made after
a regular trial and on hot contest. Under
these circumstances, it would be unjust
and unfair and rather oppressive to allow
the findings recorded in the departmental
proceedings to stand.
31. In our opinion, such facts and
evidence in the departmental as well as
criminal proceedings were the same
without there being any iota of difference,
the appellant should succeed. The
distinction which is usually proved between
the departmental and criminal proceedings
on the basis of the approach and burden of
proof would not be applicable in the instant
case. Though the finding recorded in the
domestic enquiry was found to be valid by
the courts below, when there was an
honourable acquittal of the employee
during the pendency of the proceedings
challenging the dismissal, the same
requires to be taken note of and the
decision in Paul Anthony case [(1999) 3
SCC 679 : 1999 SCC (L&S) 810] will apply.
We, therefore, hold that the appeal filed by
the appellant deserves to be allowed."
20. Since the facts and evidence in criminal case and
department proceedings were same and the witness in both
the proceedings were same and the complainant and shadow
witness having not supported the investigation officer which is
clear from the evidence of PW1 to PW3.
21. Insofar as, the judgments relied upon by the
learned counsel for the respondents is in regard to the law that
the acquittal by the criminal court does not preclude
Departmental enquiry against the delinquent officer. The
disciplinary authority is not bound by the judgment of the
criminal court if the evidence that is produced in a
departmental enquiry is different from that produced during the
criminal trial and that the object of departmental enquiry is to
find out whether the delinquent is guilty of misconduct under
the conduct rule for the purpose of determining whether he
should be continued in service. Applying the very same
stringent settled law and considering the judgment relied by
the respondents stated supra, this court is well aware about
the settled law, bearing this in mind the evidence departmental
enquiry is taken into consideration based on the rules of
evidence.
21. Looking into the departmental enquiry based
upon the facts and circumstances of the witnesses PWs.1 to 3
and the criminal case having acquitted the petitioner on the
same set of facts and evidence, and considering the law laid
down in the case of G.M.Tank under similar set of facts
having reinstated the petitioner, we are of the considered view
that the petitioner is entitled to succeed in the departmental
enquiry and hence, point Nos.1 and 2 are answered in favour
of the petitioner.
22. For the aforesaid reasons, we are of the
considered view that the order of penalty imposed by
respondent No.2 based on the report of the enquiry officer
dated 06/03/2019 and the recommendation letter dated
08/03/2019 and the order dated 19/10/2019 by the Managing
Director, KPTCL warrants appropriate interference. Hence,
we pass the following:
ORDER
(i) Writ petition is allowed.
(ii) Report of the enquiry officer dated 06/03/2019
vide Annexures - E and B, recommendation
order of respondent No.4 dated 08/03/2019 vide
Annexure -F/order of respondent No.2 dated
19/10/2019 as per Annexure - H are hereby set
aside.
(iii) The respondents are directed to reinstate the
petitioner into service together with all
consequential benefits that would flow from such
reinstatement within a period of three months
from the date of receipt of a certified copy of this
order.
(iv) In view of disposal of the petition, I.A.No.2/2021
for vacating the interim order does not survive for
consideration and the same stands dismissed.
(v) Insofar as CCC No.200115/2021 is concerned, in
view disposal of the writ petition, the contempt
proceedings are dropped.
Sd/-
JUDGE
Sd/-
JUDGE
S*
