The State Of Karnataka By vs Dr R Venkatesh S/O Raju
2022 Latest Caselaw 2718 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                       BEFORE

  THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL No.453/2011

BETWEEN:

THE STATE OF KARNATAKA BY
KARNATAKA LOKAYUKTHA POLICE INSPECTOR
TUMKUR DISTRICT, TUMKUR
                                        ....APPELLANT

(BY SRI. B.S. PRASAD, ADVOCATE)

AND:

DR. R. VENKATESH
S/O RAJU
AGED ABOUT 38 YEARS
MEDICAL OFFICER,
P.P.C. DISTRICT HOSPITAL
TUMKUR
PRESENT ADDRESS:
MEDICAL OFFICER, GOVT. HOSPITAL
SOMWARPET, KODAGU DISTRICT
                                     .... RESPONDENT
(BY SRI. A.H. BHAGAVAN, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 378(1) & (3)
OF CR.P.C. BY THE STATE PRAYING TO GRANT LEAVE TO
APPEAL    AGAINST    THE   JUDGMENT    AND    ORDER
DATED:14.12.2010 PASSED BY THE LEARNED SPECIAL
JUDGE, TUMKURU IN SPL.CASE No.55/2002 ACQUITTING
THE    RESPONDENT-ACCUSED     OF    THE    OFFENCES
PUNISHABLE U/S 7, 13(1)(d) R/W 13(2) OF THE
PREVENTION OF CORRUPTION ACT, 1988.
                                2




     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.01.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                    JUDGMENT

The State through Lokayukta Police has submitted

this appeal under Section 378(1) & (3) of Cr.P.C.

challenging the judgment and order of acquittal dated

14.12.2010 passed by the Principal Sessions Judge,

Tumakuru, in Special Case No.55/2002.

2. For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the trial Court.

3. The brief facts of the prosecution case are

that, the complainant Sri.V.H. Nagarajaiah is a public

servant and his wife Ramamani has delivered the

second child on 13.07.2001 at Pragathi Nursing Home,

Tumakuru and Dr. Anasuya of the said hospital has

performed vasectomy surgery to his wife Ramamani on

the same day. The complainant Sri. V.H. Nagarajaiah

required a certificate regarding his wife undergoing

vasectomy operation for getting special increment and

submitted an application for issuance of necessary

certificate as per Ex.P2 addressed to the District

Surgeon and along with said application, he has also

produced the certificate issued by Dr. Anusuya

pertaining to his wife Smt. Ramamani, for having

underwent vasectomy operation. The complainant got

information that the accused was the Medical Officer,

who would process the said certificate and on the same

day he met the accused and requested for issuance of

the certificate. Then the accused has demanded bribe

and initially the accused demanded Rs.2,000/- for

issuance of Family Planning Certificate and later on

settled it for Rs.500/-. As the complainant was not

inclined to pay bribe, he lodged a complaint as per

Ex.P4 before Lokayukta Police, Tumakuru on

31.08.2001 at 9.30 am. In pursuance of the said

complaint, a case was registered against the accused

and a trap was set-up. Two Government Servants were

secured as panchas and the complainant has produced

Rs.500/- to be paid as bribe to accused and after

drawing an entrustment mahazar, the complainant and

shadow witnesses have approached accused in the

office of the accused and the accused was trapped while

he demanding and accepting bribe of Rs.500/-. In this

regard, accused was arrested and his hand-wash was

taken, which turned into pink colour and tainted

amount was also recovered. Then after obtaining

necessary sanction and after concluding investigation,

the Investigating Officer has submitted the charge sheet

under Sections 7, 13(1)(d) and 13(2) of the Prevention

of Corruption Act, 1988 ('PC Act' for short). Accused

was produced before the Special Court and was

enlarged on bail.

4. Cognizance was taken by the learned Special

Judge and accused has appeared in pursuance of

summons and he was furnished with the copies of

prosecution papers.

5. After hearing the learned counsels appearing

for the parties on both sides, the learned Special Judge

has framed charges against accused for the offences

under Sections 7, 13(1)(d) r/w. 13(2) of P.C. Act.

Accused pleaded not guilty and claimed to be tried.

6. The prosecution has examined in all seven

witnesses as PW.1 to PW.7 and also got marked

Eighteen documents as Ex.P1 to Ex.P18 and Nine

material objects were also got marked as MOs. 1 to 9,

in evidence.

7. After conclusion of evidence of prosecution,

the statement of accused under Section 313 of Cr.P.C.

was recorded to enable accused to explain incriminating

evidence appearing against him in the case of

prosecution. The case of accused is of total denial and

he has given statement submitting that, he is not the

authority to issue the certificate and neither he had

motive to demand bribe nor he has accepted bribe. He

also lead the evidence of DW.1 in support of his

defence. Then the learned Special Judge heard the

arguments advanced by the counsels appearing on both

sides and has come to a conclusion that there is no

proper sanction for prosecution and also answered the

other points in negative regarding demand and

acceptance of bribe and recovery of tainted amount and

thereby acquitted the accused for charges levelled

against him. Being aggrieved by this judgment of

acquittal, the State, through Lokayukta Police, has

submitted this appeal.

8. Heard learned counsel for the appellant and

the learned HCGP appearing for the Respondent-State.

Perused the records.

9. Learned counsel for the appellant-Lokayukta

Police would contend that the evidence of both

complainant and shadow witness is supported by other

material evidence and their evidence establish demand

and acceptance of bribe. He would also contend that

the tainted amount was also recovered from the custody

of accused and the presumption under Section 20 of

P.C. Act is in favour of the complainant. He would also

contend that nothing was elicited during cross-

examination of witnesses and the trial Court has

unnecessarily given importance to minor discrepancies

which are bound to occur due to lapse of time and

erroneously held that, there was no demand and

acceptance of bribe and the amount was not recovered.

He would also contend that, the Sanctioning Authority is

the Minister of Department of Health and Family Welfare

along with Secretary and they have applied their mind

and the learned Special Judge has erroneously held that

there is no application of mind without appreciating the

evidence on record. He would further contend that,

Sanctioning Authority is required to look into prima facie

case only and the evidence of PW.2 to establish that

there is prima facie case. The entire approach of the

learned Special Judge is erroneous and it has led to

perversity as well as miscarriage of justice. He would

also contend that the Family Planning Certificate was

recovered from accused and there is material evidence

to show that the accused has demanded and accepted

bribe being a public servant and hence, he would

contend that the trial Court is not justified in acquitting

accused and it has led to miscarriage of justice and as

such, he would seek for setting aside the impugned

judgment and order of acquittal.

10. Per contra, the learned counsel for the

respondent/accused would support the judgment of the

trial Court and contend that the accused is not the

authority to issue Certificate and the application is also

not addressed to him and he is the only verifying

authority. He would also contend that the application

was submitted to the District Surgeon and the certificate

was not recovered from the custody of the accused,

but, it was produced by one Smt. Deviramma. He

would also contend that the evidence of PW.2

(Complainant) and PW.3 (shadow witness) as well as

the 2nd Panch are inconsistent with each other regarding

drawing mahazar in Lokayukta office, which completely

demolish the case of the prosecution. He would also

contend that there was no verbal demand and the

evidence discloses that there was only a demand by

gesture and though the trap is alleged to have been

held in the office of the accused, but the proceedings

were drawn in Lokayukta office, which creates suspicion

over the entire case of the prosecution. Hence, he

would contend that, considering all these aspects, the

trial Court is justified in acquitting the accused and the

view taken by the trial Court is also a possible view and

there is no material evidence to prove the demand and

acceptance, so as to draw a presumption. Hence, he

would contend that the judgment of acquittal passed by

the trial Court does not call for any interference and

prayed for dismissal of appeal.

11. After having heard the arguments and after

perusing the oral and documentary evidence in the form

of records of the trial court, the following points would

arise for consideration:-

i) Whether the sanction order issued is invalid?

     ii)    Whether the judgment of acquittal passed
            by    the    Special        Judge   is   perverse,

erroneous and arbitrary so as to call for interference by this Court?

12. As per Section 19 of the P.C. Act, before

taking cognizance, a pre-requisite sanction is

mandatory. PW.4 is Under Secretary to Government,

Health and Family Welfare Department and he issued

Ex.P7-Sanction Order against the accused. It is to be

noted here that, he is not the author of the sanction

order, but he has only issued the same on behalf of the

department in the name of His Excellency, the Governor

of Karnataka. His evidence also disclosed that, the file

was put-up with details along with trap mahazar, copy

of the complaint etc. and sent for approval to the Chief

Secretary, who approved the note for issuing sanction

and same was forwarded to the Minister, who accorded

permission in the original file. On the basis of the said

permission, PW.4 has simply issued Sanction Order in

the name of the Governor. Very interestingly the

learned Special Judge has given unnecessary

importance to the cross-examination of PW.2 wherein,

he has admitted that, in trap mahazar, there was no

demand. This is an erroneous observation on the part

of the learned Special Judge, as the trap mahazar as

per Ex.P6 clearly establish that, there was a demand,

but there was no verbal demand, and the demand was

by sign i.e., by rubbing thump to the forefinger. In

pursuance of the sign of the accused, it is recorded that

the complainant has paid bribe amount and the same

was received by the accused. Hence, the very

observation of the trial Court/Special Judge that, 'there

is no application of mind by the Sanctioning Authority',

holds no water. The citations relied in this regard by

the trial Court have no applicability, as there is specific

reference in the trap mahazar, the complaint and

Sanction Order-Ex.P7 regarding demand. Further, in

Ex.P7 every thing is discussed in detail including the

documents submitted for verification. Apart from that,

the Sanctioning Authority cannot discuss the same so as

to ascertain whether the case is going to end in

conviction or not and if there is a prima facie case, the

Sanctioning Authority is bound to consider the case and

issue Sanction. But, all these aspects were over-looked

by the Special Judge in a mechanical way without

application of mind and without verifying the sanction

order as well as contents of the trap mahazar, and has

observed that there is invalid sanction, which is an

erroneous finding. The sanction is a valid sanction as

per Ex.P7 and the observation and finding of the trial

Court in this regard are perverse and arbitrary. Under

these circumstances, I answer the first point under

consideration, in negative.

13. Now coming to other part i.e, the demand

and acceptance of the bribe, the prosecution has mainly

relied on the evidence of PW.2 (complainant) and PW.3

(shadow witness) as they are material witnesses. The

complainant has specifically deposed regarding he

approaching the accused and there was a demand and

acceptance bribe by the accused through a sign but not

verbally and PW.3 has supported this version. The

Special Judge carried away with the fact that there was

no verbal demand. There is no specific law that the

demand should be only by verbal. There are various

modes of demand for bribe and looking to the

circumstances of the case, the court is required to draw

an inference as to whether there was a demand and

acceptance. Apart from that, the amount was also

recovered from the custody of the accused and it is for

the accused to explain as to under what circumstances

the amount was found in his custody. But, the

statement recorded under Section 313 of Cr.PC. does

not explain anything in this regard. Learned counsel for

the respondent contended that, mere recovery of

tainted amount itself is not sufficient to convict the

accused, unless there is demand and acceptance of

bribe. In this context, he placed reliance on Head Note-

A of the decision reported in (2021) 2 SCC (Crl) 515

[N. Vijayakumar Vs. State of Tamil Nadu]. On the

same principal, he further placed reliance on the

decisions reported in following cases:

1. (2009) 2 SCC (Crl) 1 [C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala];

2. AIR 2007 SC 489 [V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P];

3. (2016) 3 SCC (Crl.) 316 [T.K. Ramesh Kumar Vs. State];

4. 1979 CRL.L.J. 1087:AIR 1979 SC 1408 [ Suraj Mal Vs. The State ( Delhi Administration)];

5. ILR 2010 KAR 983 [State of Karnataka, Through Police Inspector, Bureau of Investigation Vs. Anand Gururao Deshpnde].

On the basis of these citations, learned counsel would

contend that, mere recovery of tainted amount from

accused cannot be treated as substantial evidence in

the absence of proof of demand and acceptance. But,

none of these citations are relied in Full Bench decision

of the Hon'ble Apex Court reported in AIR 1964 SC

375 [Dhanvatari Balwantrai Desai Vs. State of

Maharahtra], wherein it is observed as under:-

"Prevention of Corruption Act (2 of 1947), S.4(1) - Accused shown to have accepted

money which was not legal remuneration - Presumption can be raised - Rebuttal must be by explanation which must be true and not merely plausible - Presumption under S.4(1) and Evidence Act S.114, distinction between- Whether presumption is rebutted, is question of fact- Supreme Court will not interfere, Constitution of India, Art.136-Evidence Act (1 of 1972), S.114 - Penal Code (45 of 1860), S.161

-"

14. Hence, the Hon'ble Apex Court in 1964 itself

has laid down a law that, when it is shown that the

accused has received or accepted sum of money, which

is not legal remuneration, presumption must be raised

and rebuttal must be by an explanation, which must be

true and not mere plausible. As such, once it is

established that the amount was recovered from the

custody of the accused, which is not a legal

remuneration, drawing of presumption in that regard

becomes mandatory. All citations referred by the

learned counsel for respondent do not refer to the

decision of the Full Bench and the case law discussed in

the decision of Dhanwantari Balwantrai Desai's case

was not at all discussed in any of these subsequent

decisions. Hence, in view of the Four Judges' Bench

decision of 1964 (supra), the subsequent decisions

cannot be made applicable and the said principles were

not brought to the notice of the Hon'ble Apex Court in

those decisions including Three Judges Bench decision

reported in Vijayakumar's case (supra). Hence, as per

the decision of Dhanwantari Balwanrai Desai's case,

if it is established that the amount was recovered from

the custody of the accused, which is not a legal

remuneration, the presumption under Section 20 of the

P.C. Act must be drawn and the accused is required to

rebut the said presumption on the basis of

preponderance of probability. However, at the same

time, it is necessary to consider other portion of the

evidence as to whether presumption under Section 20

can be drawn regarding recovery of the amount from

the custody of the accused.

15. No doubt, PW.2 and PW.3 have supported

the case of the prosecution. But, further they have

specifically deposed regarding demand by showing signs

by rubbing thumb to fore-finger. However, it is

important to note here that the trap was held in the

office of accused. The evidence of PW.2 and PW.3 also

disclose that, there were some other persons when the

trap was laid. But, the Investigating Officer did not

record the statement of independent witnesses.

Further, all along it is the case of the prosecution that

trap mahazar was prepared in the office of the accused.

But, PW.2 (complainant) in his examination-in-chief

itself has specifically deposed that, by 12.45 p.m., after

all the formalities, they returned to Lokayukta office,

wherein trap mahazar was drawn and they signed on it.

This statement is fatal to the case of the prosecution.

No doubt in his cross-examination, PW.2 tried to

cover up this statement by saying that, he has given a

false evidence in his examination in chief regarding trap

mahazar drawn in Lokayukta office. But, very

interestingly, the trap witness was not treated as hostile

for stating that the trap was drawn in Lokayukta office.

Again this evidence is corroborated by the evidence of

PW.3, who is a shadow witness.

16. PW.3 in examination in chief has deposed

that seizure panchnama ie., Ex.P6 was prepared in the

office of the accused for 2 to 3 hours from 12.30 p.m.

and he has attested the said panchanama. In the cross-

examination, he admitted that he has put his signature

on the trap mahazar in the office of Lokayukta. This

clearly establish that the shadow witness did not say

anything about the complainant putting his signature on

the trap mahazar on the spot. The further cross-

examination of PW.3 discloses that, there were 1 or 2

nurses present in the said room and his statement was

recorded in Lokayukta Police office and he signed it.

17. It is also the case of the prosecution that the

Family Planning Certificate was handed over by the

accused from his Almairah. PW.2 and PW.3 have also

deposed to this effect. But, PW.6 the other mahazar

witness, who has turned hostile deposed contrary. No

doubt his evidence is not relevant for demand and

acceptance, but considering the admissions given by

PW.2 and PW.3 regarding drawing mahazar at

Lokayukta office, the evidence of PW.6 assumes more

importance, as he has specifically deposed that a Nurse

by name Smt. Deveeramma brought the Family

Planning Certificate and produced it. He has specifically

stated that mahazar was drawn in Lokayukta office.

Though this witness was treated as hostile, in the entire

cross-examination by the learned Special P.P., there

was no denial of this aspect and there was no

suggestion that, 'mahazar was drawn in the office of the

accused itself'. Further, statement of this witness that

one Smt. Deveeramma has produced the Family

Planning Certificate is also not changed in the cross-

examination by the learned Special PP. In the cross-

examination PW.6 has specifically deposed that both

panchanams were prepared together in Lokayukta

office. Further, his evidence disclose that the amount

was lying on the table and as per the instructions by the

Investigating Officer, the accused picked-up the amount

and handed-over it to the Investigating Officer. In the

cross-examination also he has specifically deposed that,

mahazar was drawn in Lokayukta office itself. Further,

the Investigating Officer has specifically stated that,

there was an Almairah in the office of the accused and

from which the accused has removed the Family

Planning Certificate and produced it. On perusal of the

sketch (Ex.P1), existence of Almairah is not at all

shown. It is the contention of the accused that the

complainant has thrusted the amount in his hand.

Though the accused has failed to substantiate this

contention, the initial burden is on the prosecution to

establish that the trap mahazar was drawn at the spot.

But, in the instant case, the evidence disclose that the

trap mahazar was drawn in Lokayukta office and no

proper explanation is forthcoming in this regard.

Further, the accused has got examined one witness,

who was Second Division Assistant (SDA), who deposed

that accused is not competent person to issue Family

Planning Certificate and the District Surgeon is the

competent person and the accused is only a counter

signing authority. Further, Ex.P2 discloses that, it is

directed to District Surgeon and not to the accused.

Ex.P3 discloses that both accused and the District

Surgeon have also signed on it. The evidence disclose

that one Smt. Deveeramma has produced the Family

Planning Certificate and though the prosecution alleged

that it was recovered from the custody of the accused,

the same is not substantiated. Looking to these lapses

and considering the fact that the trap mahazar was also

not all drawn at the spot ie., in the office of the

accused, but it was drawn in Lokayukta office, a serious

doubt would arise regarding genuineness of the case of

the prosecution. Under such circumstances,

presumption under Section 20 of the PC Act cannot be

drawn.

18. Learned counsel for the respondent would

further contend that, when the view taken by the trial

Court is also a possible view, considering the

contradictions in the evidence of three witnesses and

unexplained lacuna on the part of the prosecution, the

said view cannot be disturbed. In support of his

contention, he placed reliance on a decision reported in

(2021) 2 SCC (Crl) 515 (supra) (Head Note-D),

which reads as under:

"D. Public Accountability, Vigilance and Prevention of Corruption-Prevention of Corruption Act, 1988-Ss. 7, 13(2) and 13(1)(d)-Acquittal-Reversal by High Court- Same held not justified, when view taken by trial Court found to be a possible view after considering contradiction in evidence of key witnesses and unexplained delay in conducting phenolphthalein test"

19. The learned counsel also placed reliance on a

decision reported in 2012 Crl.L.J. 4388 (SC) [K.

Venkateshwarluy Vs. State of Andhra Pradesh]

(Head Note-A), wherein it is observed as under:

"(A) Criminal P.C.(2 of 1974), S.378- Appeal against acquittal-Interference-Not to be only because other view is possible-For

interference order under appeal has to be perverse.

If the view taken by the trial Court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral consideration (Para5)."

Hence, unless prosecution establishes that, the

order of acquittal is totally perverse against the

weightage of evidence, rendering incomplete breach of

settled principles underlying criminal jurisprudence, no

interference is called for.

20. In the instant case, as stated above, there is

inconsistent evidence regarding place of drawing trap

mahazar and production of Ex.P3 (Family Planning

Certificate). Hence, in view of this contradictory

evidence, the view taken by the trial Court cannot be

said to be perverse or erroneous. The said principles

are directly applicable to the case in hand. On this point

itself, the learned counsel for the appellant has further

placed reliance on the following decisions:

1) (2011) 2 SCC (Crl.) 375 [Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra]

2) (2007) 1 SCC (Crl) 113 [Samghaji Hariba Patil Vs. State of Karnataka]

3) 2013) 3 SCC (Crl.) 289 [S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka]

4) (2005) SCC (Crl.)1252 [Ayodhya Singh Vs. State of Bihar and others]

Hence, in view of the principles enunciated in the

above said decisions, when the view taken by the trial

Court is found to be a possible view on the basis of

appreciation of the evidence on record, the same shall

not be disturbed. Further, it is also observed that

presumption on 'Innocence of accused' being a

preliminary factor, in the absence of exceptional and

compelling circumstances and perversity of the

judgment of acquittal, it is not open to the Appellate

Court to interfere with the judgment of acquittal passed

by the trial Court in a routine manner. The Hon'ble Apex

Court has further laid down the law that, the High Court

should not ordinarily reverse the judgment of acquittal

when two views are possible. The principles enunciated

in the above cited decisions are directly applicable to

the case in hand. In the instant case, the evidence of

PW.2, PW.3 and PW.6 does not support the case of the

prosecution as regards production of Ex.P3-Family

Planning Certificate by accused and drawing of mahazar

at the spot and it completely falsify the case of the

prosecution. If at all the mahazar is drawn at

Lokayukta Office, when the trap was laid down in the

office of the accused, it is for the prosecution to explain

as to why the mahazar was drawn in Lokayuktha office.

As per the case of the prosecution, mahazar was drawn

at the spot itself, but the evidence speaks a different

story. If that is taken into consideration, then the entire

case of the prosecution regarding demand and

acceptance becomes doubtful.

21. Under these circumstances, though the trial

Court has erred in considering the demand, acceptance

and sanction, however, the trial Court is justified in

acquitting the accused considering the inconsistent

evidence of PWs.2, 3 and 6 in this regard. Therefore,

looking to facts and circumstances of the case, the

judgment of acquittal passed by the trial Court does not

call for any interference by this Court, as the view taken

by trial Court is also a possible view. Accordingly, in

view of the above discussions, at no stretch of

imagination, it can be said that the judgment of the trial

Court is perverse or arbitrary so as to call for any

interference by this Court. Accordingly, the point No.2

under consideration is answered in negative and as

such, I proceed to pass the following:-

ORDER

The appeal is dismissed. The judgment and order of acquittal dated 14.12.2010 passed by the Principal Sessions Judge, Tumakuru, in Special Case No.55/2002, is hereby confirmed.

Sd/-

JUDGE

KGR*