Sayabanna S/O Ningappa Doddamani vs The State Through The Police ...
2022 Latest Caselaw 2605 Kant

                            1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200096/2015


BETWEEN:

Sayabanna S/o Ningappa Doddamani,
Age : 50 years, Occ : Head Constable,
No.514, Mudhol Police Station,
R/o Muchakhed, Tq : Chittapur,
Dist : Gulbarga.
                                               ... Appellant

(By Sri Avinash A.Uploankar, Advocate)


AND:

The State through
The Police Lokayukta, Yadgir.
                                             ... 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
passed in Special Case No.575/2010 by the Principal
Sessions Judge, Kalaburagi.

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

Accused who suffered an order of conviction in

Special Case No.575/2010 on the file of Principal District

and Sessions Judge, Kalaburagi by judgment dated

28.09.2015 is before this court in this appeal.

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

Nazirmiyan S/o Ahamadmiyan resident of Mudhol,

Sedum Taluk, Kalaburagi District lodged a complaint with

Lokayukta Police on 16.01.2008 contending that he is

running a jeep on rental basis. 20 days prior to filing of the

complaint, when he was driving the jeep near Ribbanpalli

Cross along with passengers, before parking the jeep at

Mudhol cross one of the passengers hurried and get down

from the jeep and sustained injuries and a complaint was

lodged in that regard. The police after registering the case

filed by one of the passengers seized the jeep. The interim

custody of the jeep was not processed for the reasons

known to the Head constable. Accused/appellant who was

working as a Head Constable in Mudhol Police Station

demanded bribe amount of `2,500/- for the purposes of

implementing the interim order of custody of the jeep to

the complainant and the complainant was not willing to

pay illegal gratification, was again bargained from `2,500/-

to `2,000/- and the complainant was not ready to part

with the said amount of `2,000/- also and therefore,

lodged the complaint to the Lokayukta Police.

After satisfying about the version of the complaint

averments, the Lokayukta Police registered a case in Crime

No.1/2008 and arranged for trap. The head of the raid

party secured the presence of two independent

Government Officials for the purpose of acting as panchas

and complaint averments were explained to them. The

panchas understood the same and thereafter, four

currency notes of `500/- denomination was secured from

the custody of the complainant and the phenophthalein

powder was smeared on it and its re-action with the

colourless sodium carbonate solution was demonstrated to

the panchas as well as the complainant. Thereafterwards,

the samples were collected and entrustment/experimental

mahazar was drafted by the head of the raid party.

Thereafter, complainant and the shadow witnesses were

given instructions to visit the Mudhol Police station and on

demand made by the accused, the complainant was told to

handover the tainted currency notes to the hands of the

accused.

As such, on 16.01.2008, the complainant and the

shadow witnesses were visited the Mudhol Police Station

and rest of the raid party hidden themselves nearby the

police station waiting for the pre-designated signal. The

complainant and the shadow witnesses went to the Mudhol

Police Station and contacted the accused and on demand

made by the accused, handed over the tainted currency

notes into the hands of the accused which he kept in his

right side of the pant pocket at about 4.30 p.m. Pre

designated signal was given to the raid party and

immediately raid party appeared on the scene and asked

the accused to hand over the tainted currency notes,

accused took out the tainted currency notes from his

pocket and the same was seized by the head of the raid

party after verifying the serial numbers of the tainted

currency notes with the entrustment mahazar. Subsequent

thereto, the colour test was conducted which turned into

positive. The raid party also collected the samples and

seized the same and thereafter accused asked to explain

about the incident he gave an explanation stating that the

complainant had obtained a hand loan from him and same

was returned believing the words of the complainant that

he kept the same in the right side of his pant pocket.

The raid party being not satisfied with the

explanation given, arrested the accused and produced him

before the court and he was sent to judicial custody.

Thereafter, police investigated the matter thoroughly and

laid charge-sheet against the accused for the offences

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

13(2) of the Prevention of Corruption Act (for brevity

hereinafter referred to as the 'P.C. Act' for short).

3. 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.

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

prosecution examined 13 witnesses as PWs.1 to 13 and

relied on 29 documents which were exhibited and marked

as Exs.P.1 to P.29 and 13 material objects were also

marked on behalf of the prosecution as MOs.1 to 13.

5. 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.

6. Thereafter, the 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:-

"Accused - Sayabanna S/o Ningappa Doddamani who has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act is sentenced to undergo imprisonment for a period of six (06) months and shall pay a fine of Rs.2,000/- (Rupees Two Thousand only). In default of payment of fine, he shall undergo further imprisonment for a period of two (02) months.

Further, accused - Sayabanna S/o Ningappa Doddamani is also sentenced to undergo imprisonment for a period of two (02) years and shall pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence under Section 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption Act. In default of payment of fine, he shall undergo further imprisonment for a period of six (06) months.

The above substantive sentences shall run concurrently.

Accused - Saybanna S/o Ningappa Doddamani is entitled for set-off if any under Section 428 of Cr.P.C."

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 impugned judgment and order of conviction and sentence recorded by the learned Trial Judge is contrary to law, facts and evidence on record. Hence the same is liable to be set aside.

x That, the reason assigned by the learned Trial Judge while passing the impugned judgment and order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment, order of conviction and sentence, resulting in substantial miscarriage of justice to the case of appellant.

x That, the learned trial judge has totally misconceived the provision of Sec.3 of evidence Act and forgot to notice that evidence includes cross-examination also.

x That, the trial judge has extracted the portion of the cross-

examination done by the prosecution forgetting to look into the last two lines of denial put forth by the complainant Pw- 1 and wrongly holding that Pw-1 has admitted the case in Cross-examination after treating the witness hostile.

x That, the learned trail judge has erred in taking note the fact in the cross examination by the defence pertaining to the fact that Pw-1 does not know to write and read Kannada and also he is not the author of the complaint.

x That, the learned trial judge has erred in even noticing the fact that the specific defence of the accused the amount

was receipt of hand loan and also continued with the same stand by getting admission in the cross-examination of Pw- 1 and also in 313 Cr.P.C. statement.

x That, the case pertaining to prosecution is about demand of money for release of vehicle for which it is bought on record that the appellant is not the competent officer nor the investigating officer of the case in which the vehicle is released. Further, it is surprising to note that the vehicle in question which was seized, the complainan w-I is neither the owner nor R.C holder. This fact is not at all discussed by the trail judge.

x The learned trial judge has casually dealt with the evidence of Pw-2 where in it is bought on record in the Cross- examination by confronting the evidence put forth in the departmental enquiry that the complainant voluntarily gave money to appellant when he entered the gate, falsifying the stand that any demand was ever put forth by the appellant.

x That, the trial judge has only extracted a part of the extract of the chief examination and concluded that the prosecution has proved the case on the basis of evidence of Pw-2 which is unknown to law.

x That, the trial judge was totally wrong in not looking into the evidence of Pw-11 Cross-examination regarding the fact that who was the owner of the vehicle and the same was already released by the jurisdictional court.

x That, it was bought on record with admission by I.O. itself that the investigation of case bearing Cr.No.122/07 where

in the vehicle was seized, one Dattappa head constable was the I.0 and no work was pending before the appellant.

x That, the trial judge has totally misinterpreted or misunderstood the judgment reported in 2008 where in the complainant and shadow there was further and witnesses have supported thee case inconsistency in the defence taken by the appellant.

x That, the trial court has held that no evidence or documents are produced to show that there was monetary transaction between complainant and appellant which is unknown to law as the defence has to put forth preponderance of probabilities."

9. Reiterating the above grounds, learned counsel

for the appellant Sri Avinash A.Uploankar vehemently

contended that in order to attract the offences punishable

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

P.C.Act the prosecution is bound to establish before this

court that some work was pending with the accused so as

to show official favour to the complainant and accused

must have demanded illegal gratification and as on date of

trap there was no work was pending with the accused of

the complainant and therefore, the conviction 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.

11. He further contended that in respect of the

release of the jeep as interim custody in pursuance of the

court order, belonging to the complainant, accused

demanded illegal gratification and the same is also

established by placing necessary oral and documentary

evidences on record. He further pointed out that offer and

acceptance of bribe amount and the colour test stood

positive, the prosecution has successfully established all

ingredients to attract the aforesaid offences and sought for

dismissal of the appeal.

12. In view of the rival contentions, this court

perused the records. On consideration of the materials on

record and in the light of the arguments put forth by the

learned counsel for the parties, the following points would

arise for consideration:-

1. Whether the appellant/Lokayukta has successfully established before the court that accused in order to show official favour to Nazirmiyan (PW.1) demanded sum of `2,500/- at the first instance and agreed to receive `2,000/- from the complainant PW.1 and took `2,000/- on 16.01.2008 and thus committed an offence punishable under Sections 7, 13(1)(d) read with 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 the sentence is excessive ?

Regarding point Nos.1 and 2 :

13. In the case on hand, to prove the case of the

prosecution, Nazirmiyan who is the complainant is

examined as PW.1. He has not supported the case of the

prosecution. Abdul Gafoor S/o Mohammed Hussain is a

shadow witness is examined as PW.2. He has supported

the case of the prosecution in entirety by reiterating the

contents of the entrustment mahazar and the trap

mahazar with meticulous and graphic details. In his cross-

examination no useful materials are elicited so as to

disbelieve his oral testimony. Girish is the co-pancha who

supported the case of the prosecution insofar as the

entrustment mahazar, actual raid and trap. PW.5 Amruth

is the Assistant Sub Inspector of Mudhol Police Station who

identified the voice of the accused insofar as the demand is

concerned. Ramgond is the Police Inspector also deposed

that accused was working as Head Constable in Mudhol

Police Station. Both of them have not supported the case

of the prosecution and they have been treated as hostile

witnesses. Ningareddy is the Engineer in Public Works

Department who prepared the spot sketch vide Ex.P.23

and his evidence is formal in nature as there is no dispute

as to the trap. PW.8-B.A.Padmanaban is the Deputy

General Inspector, CID, Bengaluru who issued the sanction

order to prosecute the accused, his evidence is formal in

nature inasmuch as there is no serious dispute as to the

sanction order which is marked at Ex.P.24. PW.9-Dattappa

is the Investigation Officer who was actually seized the

jeep of the complainant. PW.10-Basavaraju Assistant Sub-

Inspector of Lokayukta who received the complaint and

assisted in laying the trap. Maheshwargouda is the CPI

who is head of the raid party and Investigation Officer of

the present case and has supported the case of the

prosecution in toto. PW.11-Chinnappa is the subsequent

Investigation officer who collected all the materials on

record and submitted to court. PW.13-Jaikar is the

subsequent Investigation officer who actually filed the

charge-sheet against the accused.

14. Ex.P.1 is the compliant, Exs.P.2 to 7 are the

photographs taken during the entrustment mahazar.

Ex.P.8 is the entrustment mahazar, Exs.P.9 to 14 are the

photographs taken during the seizure mahazar. Ex.P.17 is

the alleged conversation between the complainant and the

accused. Ex.P.18 is the self defence filed by the accused

during the time of trap. Ex.P.19 is the attested document.

Ex.P.20 is the attested document of the police station

diary.

15. Ex.P.23 is the spot sketch, Ex.P.24 is the

sanction order, Ex.P.25 is the FIR and Exs.P.26 and P.27

are the letters addressed by the investigation agency,

Ex.P28 is the service register of the accused and FSL

report is marked at Ex.P.29.

16. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant for

allowing the appeal.

17. 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 :-

"£Á£ÀÄ ¦üAiÀiÁåð¢AiÀÄ ºÀwÛgÀ AiÀiÁªÀÅzÉà ®AZÀzÀ ºÀt PÉýgÀĪÀÅ¢®è.

¦üAiÀiÁð¢üzÁgÀ£ÁzÀ £ÀfÃgÀ«ÄAiÀiÁ EvÀ£ÀÄ UÀqÉØ¥ÀÄgÀ vÁAqÁzÀ UÉÆëAzÀ JA§ ºÀÄqÀÄUÀ¤UÉ MAzÀÄ fæ£À C¥ÀWÁvÀ DVzÀÝjAzÀ DvÀ¤UÉ UÁAiÀĪÁVzÉ. £À£Àß ºÀwg Û À ºÀt E®è £À£U À É ¸ÀºÁAiÀÄ ªÀiÁqÀ¨ÃÉ PÀÄ CAvÁ ¦üAiÀiÁð¢ü PÉýgÀÄvÁÛ£.É £À£ÀUÀÆ ªÀÄvÀÄÛ ¦üÃAiÀiÁð¢zÁgÀ¤UÀÆ ¸ÀĪÀiÁgÀÄ 2-3 ªÀµð À UÀ½AzÀ ¥ÀjZÀAiÀÄ«zÀÄÝ PÁgÀt £Á£ÀÄ £À£ßÀ ºÀwg Û À FUÀ ¸Àé®à ºÀt«zÉ

vÉUz É ÀÄPÉƽî CAvÁ ºÉýzÉãÀÄ. ¢£ÁAPÀ 09.12.2007 gÀAzÀÄ CªÀ¤UÉ MlÄÖ gÀÆ.2500/- PÉÆnÖgÀÄvÉÛãÉ. £Á£ÀÄ ªÀÄgÀ½ ªÁ¥À¸ÀÄì PÉÆqÀ¨ÃÉ PÀÄ CAvÁ ºÉýzÁUÀ £À£U À É ªÀÄgÀ½ ªÁ¥À¸À PÉÆqÀ¯ÁUÀzÀ PÁgÀt ¥ÀÄ£ÀB ¢£ÁAPÀ 9.1.2008 gÀAzÀÄ DvÀ¤UÉ ¸Àzj À ºÀt PÉýzÁUÀ D ªÉÄÃ¯É PÉÆqÀÄvÉÛÃ£É CAvÁ ºÉýzÀ£ÀÄ. CzÀPÌÉ £Á£ÀÄ CªÀ£À ªÉÄÃ¯É ¸Àé®Àà ¹lÄÖ ªÀiÁrgÀÄvÉÃÛ £É. CzÀPÁÌV ¦üAiÀiÁð¢zÁgÀ£ÀÄ £À£ßÀ «gÀÄzÀÝ ¸ÉÃqÀÄ wj¹PÉƼÀî®Ä ¸Àzj À PÉøÀÄ ºÁQgÀÄvÁÛ£.É

DzÀgÉ £Á£ÀÄ AiÀiÁªÀÅzÉà ®AZÀ ¦üÃAiÀiÁð¢UÉ PÉýgÀĪÀÅ¢®è. zÀAiÀÄ«lÄÖ £À£ßÀ ºÉýPÉAiÀÄ£ÀÄß §gÀªt À U Â É gÀÆ¥Àz° À è ªÀiÁ£Àå £ÁåAiÀÄ®AiÀÄPÉÌ ¸À®è¸ÀÄwÛzÉÝãÉ. CzÀ£ÀÄß zÀAiÀÄ«lÄÖ ¹éÃPÀj¸À¨ÃÉ PÀV «£ÀAw."

18. 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.

19. In a matter of this nature, in order to record

an order of conviction, the prosecution has to successfully

establish the following ingredients as is held in the case of

A.Subair v. State of Kerala reported in (2009) 6

Supreme Court Cases 587 ;-

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.

20. With the above legal requirements, the

materials on record is to be analyzed by this court and in

the light of arguments put forth on behalf of the parties.

21. In the case on hand, complainant who

registered the complaint vide Ex.P.1 has turned hostile to

the case of the prosecution. On the contrary, the shadow

witness has supported the case of the prosecution in toto.

What made the complainant to turn hostile to the case of

the prosecution is not properly elicited during the course of

cross-examination by the prosecution. Be what it may, the

learned trial Judge believed that the complainant has been

won over by the accused party and therefore, recorded an

order of conviction.

22. Further, the demand and acceptance is sought

to be proved through the complainant as well as

conversation between the accused and the complainant

and the same is also not proved inasmuch as PWs.5 and 6

have turned hostile to the case of the prosecution. Further

colour test stood positive.

23. Whenever an allegation is made that the

accused is demanded illegal gratification for showing

official favour in favour of the complainant, prosecution is

bound to establish that there was a demand made by the

accused for illegal gratification showing favour to the

complainant by missing official position. In this regard,

there is no evidence on record as the complainant has

turned hostile to the case of the prosecution.

24. Further, the third and important ingredient to

attract the aforesaid offences, prosecution is bound to

establish that some work of the complainant was pending

with the accused. In this regard, the complaint averments

reveals that jeep of the complainant was ordered to be

given interim custody in Crime No.1/2008 by virtue of the

court order. In order to release the said jeep, case of the

prosecution is that the accused initially demanded a sum of

`2,500/- which was subsequently agreed to be paid

`2,000/-. The complainant was not interested in paying the

said sum of `2,000/- and therefore, he contacted the

Lokyaukta police and trap was conducted. In order to find

out whether the accused was the actual person who was

ordered to release the jeep is a question to be deiced in

this case in the light of the appeal grounds. As could be

seen from the materials on record, the actual seizure of

the jeep has taken place by Dattappa who is examined as

PW.9. Therefore, the accused is not the person who was

required to release the jeep in pursuance of the court

order. When PW.9-Dattappa is the Investigating Officer

and in his evidence he has categorically stated that he has

seized the jeep bearing Reg.No.AP-1-F-6680, it is PW.9-

Dattappa who is required to release the jeep. If PW.9-

Dattappa was required to release the jeep from the

interim custody to the complainant, why would the

accused demand money from the complainant is a

question that remains unanswered. In other words, since

no work of the complainant was pending with the accused

and it is not the case of the prosecution that PW.9-Dattapa

sought the illegal gratification through the accused and

accused received for and on behalf of PW.9-Dattappa, the

conviction recorded by the trial Judge for the aforesaid

offences cannot be sustained in the eye of law.

25. Further, Investigation officer is examined as

PW.11. In his cross-examination, he admits in a

categorical terms that it is PW.9-Dattappa who in-charge

to release the jeep in question. This aspect of the matter

is not taken note of by the learned trial Judge while

passing the order of conviction and therefore, the

impugned judgment of conviction and order of sentence

cannot be sustained in the eye of law. Accordingly, point

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

answered in the affirmative.

Regarding point No.3 :

26. In view of the findings of this court on point

Nos.1 and 2 as above, this court pass the following :

ORDER

The Criminal Appeal is allowed.

The impugned judgment of conviction and order of

sentence passed in Special Case No.575/2010 dated

28.09.2015 on the file of the Principal Sessions Judge,

Kalaburagi is hereby set-aside.

The appellant is acquitted for the offences punishable

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

Prevention of Corruption Act.

The fine amount deposited is ordered to be returned

to the appellant/accused.

Bail bonds stands discharged.

SD/-

JUDGE

sn