Kammanna S/O Tammanna vs The State Of Karnataka
2022 Latest Caselaw 2372 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

    DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200018/2016


BETWEEN:

KAMANNA
S/O. TAMMANNA
AGE: 43 YEARS
OCC: VILLAGE ACCOUNTANT
NAGANASTI-D VILLAGE,
BALAGANUR HOBLI, SINDHANUR TQ.,
R/O. CHITAPUR, DIST: GULBARGA (KALABURAGI)

                                       ... APPELLANT

(BY SRI ANILKUMAR NAVADAGI, ADVOCATE FOR
SRI SHIVANAND V. PATTANASHETTY, ADVCOATE)


AND:

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

(BY SRI SUBHASH MALLAPUR, SPL. PP.)
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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C. TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
28.01.2016, PASSED BY THE II-ADDL. DIST. & SESSIONS
JUDGE AT RAICHUR, IN SPECIAL CASE NO.7/2012 AND
ACQUIT THE APPELLANT/ACCUSED IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING :

                        JUDGMENT

This appeal is by the accused in Spl. Case (PC Act)

No.7/2012, questioning the validity of the conviction

judgment and order of sentence dated 28.01.2016 passed

by the II Addl. District and Sessions Judge, Raichur for the

offence 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 PC Act' for short]

and sentenced to undergo Rigorous imprisonment for a

period of two years for the offence punishable under

Section 7 of the PC Act and fine of Rs.15,000/- with a

default sentence of simple imprisonment for a period of

three months; and Rigorous imprisonment for a period of

two years for the offence punishable under Section

13(1)(d) read with 13(2) of the PC Act and a fine of

Rs.15,000/- with default sentence of simple imprisonment

for a period of three months.

2. Brief facts, which are necessary for disposal of

the Appeal are as under:

The Complainant-T. Basavaraj S/o. Late Nagappa

Tirukayi after death of his father, filed an application to the

Tahasildar Office for mutation of the revenue entries in his

name. The said application was rejected. Again, another

application was filed for mutation entry in respect of land

in Sy.No.20/B measuring 2 acres, situated at Naganasti

(D) Village, Balaganur Hobli, Sindhanur Taluk. When the

said application was being considered, the accused being

the Village Accountant said to have demanded illegal

gratification in a sum of Rs.2,500/-, which was ultimately

negotiated and fixed at Rs.2,000/-. The complainant was

not interested in illegal gratification. Therefore, he

approached the Lokayuktha Police. The Lokayuktha Police

being satisfied about the demand of illegal gratification,

registered a complaint in Crime No.12/2011 and arranged

for trap. When the matter stood thus, the Lokayuktha

Police secured the independent panch witness for the

purpose of demonstrating color test and also took

Rs.2,000/- from the complainant comprising of four notes

of Rs.500/- each denominations and smeared with

phenolphthalein powder and demonstrated the reaction of

the phenolphthalein with the sodium carbonate powder

and drew entrustment/experimental mahazar. Thereafter,

the shadow witness was instructed to accompany the

complainant to the office of the accused for the purpose of

demand to be made by the accused for handing over of the

tainted money to the hands of the accused and they were

sent ahead. The raid party was waiting for the

pre-designated signal. Accordingly, the complainant visited

the office of the accused on 24.09.2021 and thereafter, the

accused, complainant and shadow witness went to

Kanavali, wherein the complainant handed over the tainted

money to the accused. After finishing the lunch in

Kanavali, they returned to the office and accused kept the

tainted money in a file maintained in his office.

Subsequent thereto, pre-designated signal was given to

the raid party and raid was conducted. The raid party was

successful in recovering the tainted currency from the

hands of the accused and conducted the color test and the

color test stood positive. Accordingly, the raid party seized

the tainted currency notes and other materials and also

arrested the accused. The accused also offered a written

explanation. Since the raid party was not satisfied with the

written submission, he was arrested.

3. The Lokayuktha Police thereafter investigated

the matter thoroughly and filed charge sheet against the

accused for the offence punishable under Section 7 read

with 13(1)(d) and 13(2) of the PC Act.

4. Presence of the accused was secured and

charge was framed. Accused pleaded not guilty and trial

was held.

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

in all 12 witnesses were examined as PWs.1 to 12 and 32

documents were exhibited and marked as Exs.P1 to 32. On

behalf of the accused, 3 documents were marked which

were confronted to be the prosecution witnesses as Exs.D1

to D3. 7 material objects were also marked as MOs.1 to 7.

6. After conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.PC was recorded, wherein the accused was denied all

the incriminatory materials found against him. However,

he has placed his version on record in writing as

contemplated under Section 313(5) Cr.P.C., wherein he

has stated that there was no work pending with him and

money recovered is with ill motivation and there was no

demand made by him from the complainant.

7. The learned Trial Judge after taking note of

these aspects of the matter and also taking into

consideration the materials evidence on record, convicted

the accused for the aforesaid offences and sentenced him

as referred to supra.

8. Being aggrieved by the same, the accused has

preferred this appeal with following grounds:

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, it is pertinent to note that, the complainant had filed his first application for mutation in the year 2007 on the ground of succession to his father concerning land Sy.No.20/B msg. 1 acre 39 gts of Naganasti-D village. Tq: Sindhanur. That application was rejected by concern R.I. of Balaganur hobli. Tq: Sindhanur on the ground that the complainant is having his mother and sister and they have given consent for mutation of land in the name of complainant and the application came to be rejected on 31/05/2007. That, after rejection of first application for mutation the complainant has not preferred appeal before A.C. On the other hand the complainant filed second application on 25-05-2011 and for the said application the accused issued notices and no objections received and he submitted papers before R.I for sanction of mutation. The second application filed by suppressing the first rejection order. There is

Govt. order as per Ex.D-3 marked in the case that second application cannot be entertained and the same liable to be rejected. Accordingly the concerned R.I. rejected the second application for mutation on 15-09-2011 i.e. much earlier to the date of alleged trap said to be on 24-09-2011. Thus on the date of alleged trap the complainant was not having any work before this accused. That being so the question of demand of any illegal gratification would not arise in the matter.

x That, the complainant is young boy and having his paternal uncle by name Turkai Hanumanthappa who is on enimical terms with this accused. The said paternal uncle every day moves in tahsil office and he recommends the mutation applications and other applications to R.I. and V.A. as pairvikar. The said paternal uncle recommended some cases for mutation purposes and the accused did not need to his say and on that score all is not well between accused and said paternal uncle. At the instance of the paternal uncle the complainant has filed the false complaint.

x That, looking in to the evidence of prosecution witnesses absolutely there is no material to connect the proof of demand and acceptance on the part of the appellant.

x That, trial court failed to appreciate the fact that prosecution witnesses are very much interested in convicting the appellant

x That, trial court failed to appreciate the Ex.D-1 to D-3 marked on behalf of appellant to disprove the case of the prosecution.

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)(ii) 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 the evidence of prosecution, absolutely no work was pending before the appellant to do official favourism to help the complainant.

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 I.O. in the investigation of the case. Therefore, it becomes doubtful to believe the credibility and integrity of the investigation and the final report. In view of the above serious illegalities, the investigation gets vitiated.

x That, alleged sanction granted by PW4/CW10, is not according to the law. 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 all the witnesses with regard to the demanded and acceptance.

x That, appellant has discharged the burden under Section 20 of the Prevention of Corruption Act which is a rebuttable presumption with the aid of attending 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 that 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. 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 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.

x The appellant seeks leave of this Hon'ble Court to urge the other grounds at the time of final hearing.

Reiterating the above grounds, Sri Anilkumar Navadagi on

behalf of Sri Shivanand V. Pattanashetti, learned counsel

for the appellant vehemently contended that the Trial

Court has not properly appreciated the materials on record

especially the admissions obtained in the cross

examination of PW.5 that as on the date of raid, there was

no work pending in the office of the Tahsildar of the

accused. Therefore, judgment of conviction is bad in law.

9. Per contra, learned Special Public Prosecutor

for the respondent-Lokayuktha Sri Subhash Mallapur has

supported the impugned judgment by contending that the

complainant and shadow witness have categorically

supported the case of the prosecution and color test also

stood positive and there is no proper explanation offered

by the accused for the purpose of accused possessing the

tainted currency notes and thus, sought for dismissal of

the appeal.

10. In view of the above factual aspects and rival

contentions, the following points would arise for

consideration:

              (i)     Whether     the      prosecution       has
     successfully         established    all   ingredients     to

attract the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act?

(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

(iii) What order?

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

of the prosecution 12 witnesses have been examined. Out

of them, PW.1 is the complainant, who deposed in line with

the complaint averments and also in line with the contents

of entrustment mahazar and trap mahazar.

PW.2-Anilkumar, who also supported the case of the

prosecution in toto by deposing in line with the contents of

the entrustment mahazar and the trap mahazar. Color test

stood positive. Investigating officer is one Sri K.M.Yousuf.

He also deposed about the receipt of the complaint and

laying the trap mahazar.

12. PW.5-Manohar Nayak, who is the official

superior and Revenue Inspector attached to the Tahsildar

office examined by the prosecution. In his cross

examination, it is elicited as under:

"It is true that, I deposing the above evidence in the court first time I have not deposed before anybody. The police Inspector enquired me but they not recorded my statement. It is true that, we have rejected application on 31.05.2007 as the mother and sisters are not consented., The said order is not questioned by the complainant. It is true that, a second application filed by the complainant on 25.05.2011. It is true that, we have rejected the second application as per order in No.MR01 dated 31.07.2011.

It is true that, no application has been pending before me as on the date of trap. It is true that, no application has been pending before the accused on 24.09.2011 or prior to 24.09.2011. It is true that, AC passed the order on the basis of appeal filed by the PW.1. I have not seen the uncle of PW-1 one Turkai hanumanthappa who appeared before the Tahasildar and other revenue offices with the applications. It is false to suggest that, I do not anything about the case, I deposing falsely."

13. In the light of the above discrepancies, this

court has meticulously re-appreciated the material

evidence on record in order to prove the ingredients of

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

Prevention of Corruption Act.

14. As could be seen from the above, the

prosecution case mainly hinges on the testimony of the

evidence of shadow witness. It is now well settled

principles of law and requires no emphasis that in order to

establish an offence under Sections 7 and 13(1)(d) read

with Section 13(2) of the PC Act, prosecution has to

establish the following 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.

15. In view of the oral evidence of PWs.1 and 2

and Investigating officer and other material evidence on

record, it is crystal clear that prosecution has successfully

established that the accused has handled the tainted

currency notes. However, the sine qua non for completing

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

13(2) of the PC Act is that work of the complainant must

be pending with the accused as on the date of trap. In

view of the categorical admissions made by PW.5, who is

official superior of the accused and prosecution witness

himself, one of the important ingredients to attract the

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

Section 13(2) of the PC Act is not established by the

prosecution. However, the prosecution for the reasons best

known, did not treat PW.5 as hostile after such admissions

are obtained by the learned counsel for the defence.

16. In view of the fact that the first application was

already rejected and second application was also disposed

off as on the date of trap, the question of demand made

by the accused seeking illegal gratification to show official

favour to the complainant cannot be presumed even by

resorting to the presumption available to the prosecution

under Section 20 of the PC Act.

17. For the foregoing discussions, this Court is of

the considered opinion that point No.1 is to be answered in

the negative and point No.2 in the affirmative. In view of

this Court's finding on point Nos.1 and 2 as referred to

supra, regarding point No.3 is concerned, the accused

needs to be acquitted. Hence, pass the following:

ORDER

1. The Criminal Appeal is allowed.

2. The impugned order of conviction and sentence passed in Special case No.7/2012 dated 28.01.2016 by the learned II Additional District and Sessions Judge, Raichur is hereby set aside.

3. Bail bonds, if any, stands discharged.

4. Amount in deposit, if any, made by the accused is ordered to be refunded under due identification.

Sd/-

JUDGE

KA*