State Of Karntaka vs Sri Siddappa S/O Yamunappa ...
2022 Latest Caselaw 2719 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

         DATED THIS THE 18TH FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200072/2016


BETWEEN:

STATE OF KARNATAKA,
THROUGH PSI LOKAYUKTA RAICHUR,
NOW REP.BY
SPECIAL PUBLIC PROSECUTOR (LOKAYUKTA)
HIGH COURT OF KARNATAKA
GULBARGA BENCH.
                                          ... APPELLANT

(BY SRI Subhash Mallapur, Spl.P.P)


AND:

SRI.SIDDAPPA S/O: YAMUNAPPA TALAWAR
AGE: 63 YEARS, OCC: RETIRED FIRST DIVISION,
CONTRACT SURVEYOR, SLAO, OFFICE
R/O: DEVADURGA.
                                    ... RESPONDENT

(BY SRI SHIVANAND V.PATTANSHETTI, ADV.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 04.12.2015 PASSED IN SPL.CASE
NO.2/2013 ON THE FILE OF II ADDL. DISTRICT AND
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SESSIONS JUDGE AT RAICHUR, WHEREBY ACQUITTING
THE   ACCUSED/RESPONDENT     FOR   THE   OFFENCE
PUNISHABLE UNDER SECTION 7 AND 13(1)(D) AND 13(2)
OF THE P.C.ACT, 1988 AND SET ASIDE THE AFORESAID
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE
COURT BELOW BY ALLOWING THE APPEAL AND ETC.

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

                    JUDGMENT

The appeal is by the State challenging the order

passed in Special Case No.2/2013 dated 04.12.2015,

on the file of the learned II Additional District and

Sessions Judge, Raichur, acquitted the accused for the

offence punishable under Sections 7, 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act,

1988 (hereinafter referred to as 'the PC Act' for

short).

2. Brief facts of the case are as under:

One Ramachandra S/o. Lalunayak, resident of

Yaladoddi, Devadurga Taluk lodged a complaint with

Lokayuktha Police contending that the ancestral property

in Sy.No.6/1/A measuring 4 acres situated at Yalladoddi

Village, out of that land, 1 acre 20 guntas in Sy.No.6/1/A

and in land bearing Sy.No.7/B measuring 16 guntas, was

acquired by the Government on 13.08.2009 for the

purpose of construction of Canal. In respect of the

acquired land, which is irrigated land was fixed at

`1,14,000/- per acre and complainant has to get total

amount of `2,16,000/- from the Government. The

Government did not pay the amount. Therefore, his uncle

Rupla has sent the complainant to the office of the accused

and when the complainant contacted and enquired about

the payment of the acquired lands, accused demanded

illegal gratification in a sum `10,000/-. It is also contended

that already he has paid `12,000/- and when additional

`10,000/- was demanded, he was not willing to pay the

same and therefore, he approached the Lokayukta Police.

3. Lokayukta Police was convinced about the

genuineness of the complaint and arranged for trap. Two

independent Government Officials were secured to act as

panchas and the complaint averments were made known

to them and a sum of `10,000/- was secured from the

custody of the complainant comprising of 10 currency

notes of `1,000/- denomination and phenolphthalein

powder was smeared on those notes and the panchas and

the complainant were shown the reaction of the

phenolphthalein powder the colourless sodium carbonate

solution and entrustment mahazar/experimental mahazar

were drafted. Thereafter, police instructed the complainant

and shadow witness to proceed to the office of the accused

and on demand they should hand over the tainted

currency notes to the hands of the accused. Subsequent

thereto, on 06.12.2012 at about 2.45 p.m. the

complainant and the shadow witness proceeded to the

office of the accused. On demand made by the accused,

the complainant handed over the tainted currency notes to

the hands of the accused which he kept in his backside

pant pocket, designated pre-signal was given to the raid

party, raid party immediately appeared on the scene and

enquired the accused about the tainted currency. Accused

took out the money from his pant pocket and the mahazar

witnesses tallied the serial numbers of the tainted currency

notes with the entrustment mahazar and it was got tallied.

Thereafter, accused gave an explanation stating that he

had given a loan to the complainant and complainant

returned the loan amount believing the same, he has kept

it in the pant pocket. Colour test stood positive as accused

has handled the tainted currency notes and he was

arrested and produced before the court and he was sent to

the judicial custody.

4. Thereafter, Lokayukta police completed the

investigation process and filed charge-sheet against the

accused.

5. Presence of the accused was secured before

the Special Judge and charges were framed. Accused

pleaded not guilty and therefore trial was held.

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

in all 10 witnesses have been examined as PWs.1 to 10

and 41 documents were relied on, which were exhibited

and marked as Exs.P1 to P41. 09 material objects were

also marked on behalf of the prosecution. On conclusion of

the prosecution evidence accused statement as

contemplated under Section 313 of Cr.P.C was recorded

and accused denied all the incriminatory materials but did

not chose to place his version on record by examining

himself or by filing written submission as is contemplated

under Section 313(5) of Cr.P.C. Thereafterwards, learned

trial Judge heard the parties and passed an order of

acquittal against the accused.

7. Being aggrieved by the same, State is in

appeal. In the appeal memorandum following grounds

have been raised:-

x That, the Trial Court has without proper appreciation of the evidence and material placed on record by the prosecution has proceed to pass the judgment and order acquitting the accused/respondent for the offences he has been charge sheeted, hence the same is liable to be set aside.

x That, the reasons assigned by the learned Special Judge while passing the order of acquittal of the charged offence are not justifiable and unsustainable in the eye of law.

x That, the prosecution has examined in all witnesses as PW-1 to PW-10 and got marked Ex P-1 to P- 41. And witnesses have supported the case of the prosecution and the prosecution has proved the case against the accused beyond all reasonable doubt, but the Special Court without appreciating the material placed on record and the evidence led, has wrongly concluded that the prosecution has failed to prove the charge against the accused persons.

x That, though the complainant who has been examined as PW-1 has turned hostile to the case, but PW-2 who is the panch witness and PW-4 who is the shadow witness both of them have fully supported the case of the prosecution by adducing their evidence, but the trial court not considering this important aspect of the evidence has led to acquittal of the accused in the above case.

x That, PW-3 is the FDA in the office of the Special Land Acquisition Office, who identified the voice of the accused in the voice recorder, hence this evidence is more than enough to convict the accused for the afore said offences.

x That, PW-5 is the incharge of Spl Land Acquisition Officer, who has produced the service register of the accused and has deposed the same before the trail court. And PW-6 is the Engineer, who has prepared the sketch of the scene of occurrence also supported the case of the prosecution.

x That, Pw-8 who is the Spl. Land Acquisition Officer of the KUP Deodurga has furnished the salary particulars of the accused and PW-9 is the chemical examiner both of them deposed before the trial court and supported the case of the prosecution.

x That PW-10 is the Who has Conducted investigation in the above case and he has deposed in length about the investigation and also deposed regarding recording of statements of the witnesses, filing of the charge sheet and has supported the case.

x That, the learned Session Judge has ignored the provisions of Section 20 which gives the presumption of acceptance of gratification. Except the denial of the allegations made against the accused persons they have not rebutted the case of prosecution and the accused has not adduced any defense evidence and no motive is attributed against, hence the Judgment and order of acquittal holding that the prosecution has failed to

establish the charge against the accused person is illegal, improper and against the established principals of law and procedure and hence the same is liable to be set aside in view of the decisions rendered by the Apex Court in case of Krishna Ram V/s The State of Rajasthan, M.

Narsingh Rao V/s The State of Andhra Pradesh and in case of Madhukar Bhaskarrao Joshi V. The State of Maharashtra.

x That, viewed from any angle the impugned judgment and order of acquittal passed by the trial court is not only illegal, but also perverse, hence interference of this Hon'ble Court is sought for.

8. Sri Subhash Mallapur learned counsel for the

appellant/Lokayukta reiterating the above grounds

contended that learned trial Judge failed to properly

appreciate the material evidence on record and passed an

order of acquittal resulting in miscarriage of justice and

sought for allowing the appeal.

9. He also pointed out that the shadow witness

has completely supported the case of the prosecution and

complainant has been won over by the accused and

therefore he has turned hostile to the case of the

prosecution. He also pointed out that handling of the

tainted currency notes by the accused and his explanation

that complainant returned the loan amount to the accused

having not been proved by the accused, it should be

presumed that there was a demand made by the accused

in respect of the release of the compensation amount of

the complainant and therefore, sought for allowing the

appeal.

10. Per contra, learned counsel for the respondent

Sri Shivanand V.Pattanshetti supported the impugned

judgment contending that the prosecution has failed to

prove any one of the ingredients muchless all ingredients

to attract the aforesaid offences and sought for dismissal

of the appeal.

11. In view of the rival contentions following points

would arise for consideration :-

1. Whether the prosecution has established all ingredients to attract the offences punishable under

Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 ?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference ?

3. What order ?

Regarding point Nos.1 and 2 :-

12. In the case on hand, complainant who is

examined as PW.1 did not support the case of the

prosecution to any extent. The prosecution treated him as

hostile witness and cross-examined him in detail by

confronting the contents of the complaint and entrustment

mahazar and trap mahazar. However, in such cross-

examination no useful material is elicited so as to prove

the fact that accused demanded illegal gratification in a

sum of `10,000/- for releasing the compensation amount

to the complainant and complainant paid the tainted

currency notes.

13. PW.2 is a copanch who deposed about the

entrustment mahazar and trap mahazar. PW.3 is the

colleague of the accused in the office of Special Land

Acquisition Officer. In his cross-examination, he supported

the case of the prosecution. In his cross-examination, it is

elicited by the defence that it is he who was handled the

application of the complainant for the release of the

tainted currency notes and accused has not authorized to

deal with the release of the compensation amount.

14. Shadow witness who is examined as PW.4. He

supported the case of the prosecution in toto by deposing

before the court regarding entrustment mahazar and the

actual trap. In his cross-examination, defence is unable to

elicit any useful materials to disbelieve his oral testimony.

15. PW.5 is the in-charge Sheristedar of the office

of the Special Land Acquisition Officer. His evidence is

formal in nature. PW.6 is the PWD Engineer who prepared

the spot sketch. His evidence is also formal in nature.

PW.7 is the uncle of the complainant who also did not

support the case of the prosecution. PW.8 is the official

who has supplied the salary particulars of the accused. His

evidence is also formal in nature. PW.9 is the Forensic

Science Laboratory Officer who issued the Forensic Science

Laboratory report vide Ex.P.28. His evidence is also formal

in nature. PW.10 is the head of the raid party and

Investigation Officer. He deposed before the court about

the receipt of the complaint, arranging of the trap, arrest

of the accused, conducting of the investigation and filing

the charge-sheet. In his cross-examination suggestions

made to him that a false case has been foisted against the

accused is denied by him. The above evidence on record is

sought to be re-appreciated by the learned counsel for the

appellant.

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

an order of conviction, the prosecution has to successfully

establish the 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.

17. With the above legal requirements, the

materials on record is analyzed by this court, in the light of

arguments put forth on behalf of the parties.

18. In the case on hand, to establish the demand

and acceptance, complainant's evidence is not available as

he did not support the case of the prosecution. However,

shadow witness who is examined as PW.4 supported the

case of the prosecution in toto. Colour test in the case on

hand stood positive in view of the trap mahazar as well as

the Forensic Science Laboratory report. However, mere

handling of the tainted currency notes by the accused on

the date of trap itself would not be sufficient to establish

all ingredients to attract the offences punishable under

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

of Corruption Act, 1988.

19. Prosecution has to establish that there was

some work of the complainant is pending for which the

accused had demanded illegal gratification. In the case on

hand, it is the definite case of the prosecution that

complainant approached the accused for release of the

compensation amount of his acquired land belonging to the

complainant's family and in that regard, the accused has

demanded illegal gratification and complainant had already

paid a sum of `12,000/- and additional `10,000/- he was

not interested to pay the same and therefore, he lodged

the complaint.

20. As could be seen from the evidence of PW.3

who is the First Division Assistant in the office of Special

Land Acquisition Officer who examined by the prosecution

clearly admits in the cross-examination that it is PW.3 who

was required to handle the application seeking release of

compensation amount in respect of the acquired land of

the complainant and therefore, it cannot be said that the

accused had demanded illegal gratification in a sum of

`10,000/- from the complainant for release of the

compensation.

21. Further, there is no proof made available on

record either by the investigation agency or by the

complainant that he had already parted away a sum of

`12,000/- on earlier occasion in respect of the same work.

22. Further, as is found from the records placed by

the prosecution itself as per Ex.P.22, on 09.11.2012 the

file pertaining to the complainant was already sent to the

Asst. Director of Land Records office for the purpose of

survey and therefore, no work was pending.

23. Under such circumstances, the learned trial

Judge recorded a categorical finding that prosecution has

failed to prove all ingredients to attract the offence alleged

against the accused if not in so many words. This court on

re-appreciation of the above materials on record does not

find any legal infirmity or perversity in reaching out such a

finding by the learned trial Judge.

24. Further, when a duly constituted court has

recorded an order of acquittal, the innocence of the

accused stands proved/inforce

25. It is equally well settled principles of law that if

two views are permissible in a given case, the court has to

prefer the view that is favourable to the accused,

especially while dealing with an appeal under acquittal.

Applying the celebrated principles of law to the case on

hand, this court is of the considered opinion that the

prosecution has not been successful in establishing all

ingredients to attract the aforesaid offences and therefore,

finding recorded by the learned trial Magistrate is well

reasoned and based on sound logic. Accordingly, point

Nos.1 and 2 are answered in the negative and hence, the

following :

ORDER

Appeal sans merit and is hereby dismissed.

Bail bonds stands discharged.

Amount in deposit is permitted to be withdrawn by

the complainant.

Sd/-

JUDGE

KA/sn