Karnataka High Court

State Of Karnataka vs Mallikarjun S/O Sidramappa ... on 5 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200077/2015


BETWEEN:

State of Karnataka
Represented by
Special Public Prosecutor (Lokayukta),
High Court of Karnataka,
Gulbarga Bench.
                                               ... Appellant

(By Sri Subhash Mallapur, Spl.PP)


AND:

Mallikarjun S/o Sidramapa Chatre,
Head Master and In-charge,
Assistant Director Akshara Dasoha Scheme
Taluka Panchayt, Basavakalyan, Dist : Bidar.

                                          ... Respondent

(By Sri Avinash Uploankar, Sri Vinayak S.Kodla &
    Sri Ravi K.Anoor, Advocates)

      This Criminal appeal is filed under Section 378(1)
and (3) of the Criminal Procedure Code praying grant leave
to appeal against the judgment and order of acquittal
dated 13.01.2015 passed in Special Case (Corruption)
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No.12/2011 on the file of the Special Judge and Principal
District and Sessions Judge, Bidar whereby acquitting the
accused/respondent for the offence punishable under
Sections, 7, 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 by allowing this criminal appeal.

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

                            JUDGMENT

The present appeal is by Lokayukta challenging the

order of acquittal passed in Special Case (Corruption)

No.12/2011 dated 13.01.2015 passed by the

Special Judge and Principal District and Sessions Judge,

Bidar.

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

Upon a complaint lodged by one Mahadevi (PW.1),

Lokayukta Police registered a case in Crime No.3/2009 on

28.03.2009. In the complaint, it is alleged that

complainant is the Vice President of SDMC and accused

being the Headmaster and in-charge of Assistant Director

of Akshara Dasoha Scheme, Basvakalyan demanded a sum

of `10,000/- as bribe from her for release of balance

amount for construction of the Kitchen room for midday

meals scheme and she was not interested in paying the

bribe amount and therefore approached the Lokayukta

police. Lokayukta police after verifying the genuineness of

the say of complainant registered a case by taking a

written complaint and arranged for the trap. Lokyakuta

police secured the presence of two mahazar witnesses and

conducted experimental mahazar and briefed the raid

team and all of them proceeded to the house of the

accused on 28.03.2009 at about 2.30 p.m. After initial

talks, the complainant handed over a sum of `10,000/- to

the hands of the accused which was accepted by the

accused and designated pre signal was given by the

complainant to the raid party and immediately raid party

raided the house of the accused and recovered the sum of

`10,000/- which was kept on the table and conducted

colour test. Thereafter arrested the accused. After

investigation Lokayukta Police filed the charge-sheet

against the accused for the offences punishable under

Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption

Act, 1988.

3. The learned Special Judge on receipt of the

charge-sheet, took cognizance of the aforesaid offences

and secured the presence of accused and framed charge.

4. Accused pleaded not guilty and therefore trial

was held.

5. In order to prove the case of prosecution,

prosecution examined the complainant as PW.1, Kashinath

Bhimanna and Baburao as PWs.2 and 3 who are mahazar

witnesses and Syed Abdul Sab, Mohd. Tayyab Khan,

Annarao Patil, Bhimanna, Nagesh, Suryakanth, Tukaram

and Panchaksharappa as PWs.4 to 11. Among them PW.7

is the Headmaster of the school and PW.11 is the

Investigation Officer. Prosecution also relied on 17

documentary evidence on record which were exhibited and

marked as Exs.P1 to P.17 and also 11 material objects

which were marked as MOs.1 to 11 out of which MO.1 is

the currency notes seized by the raid party comprising of

05 notes of `1000/- denomination notes and 10 notes of

`500/- denomination notes.

6. On conclusion of the prosecution, accused

statement as contemplated under Section 313 of Cr.P.C

was recorded wherein accused has denied all the

incriminatory materials found against him in the case of

the prosecution. The accused has furnished written

submissions as per Section 313(5) of Cr.P.C on

09.06.2014 placing his version about the incident on

record.

7. However, on behalf of the defence, Ashok

Gurupadappa Kalshetty was examined as DW.1 and four

documents were also relied on which were exhibited and

marked as Exs.D1 to D4.

8. Learned Special Judge after hearing the parties

in detail and on consideration of the material evidence on

record including the written submissions filed by the

accused on 09.06.2014 acquitted the accused for the

aforesaid offences.

9. Being aggrieved by the same, the Lokayukta is

in appeal.

10. 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 11 witnesses as PW-1 to PW-11 and got marked Ex p-1 To P-11. And all the witnesses have supported the case of the prosecution. Though the complainant PW-1 has turned hostile, but in the cross examination she has stated that she has lodged the complaint against the accused before he Lokayukta Police, Bidar as per Ex-P-1 and also accepted that she has given a sum of Rs.10,000/-., hence there is a demand of Rs.10,000=00 and

acceptance of Rs.10,000=00 by the accused which is also corroborated by other witnesses but the Special Court has not considered these aspects and wrongly concluded that the prosecution has failed to prove the charge against the accused.

x That, admittedly the prosecution has established the demand of bribe, acceptance and subsequently recovery of the amount from the accused. Hence, the prosecution has established the offences against the accused punishable under section 7 and 13(1) (d) R/w section 13(2) of the Prevention of Corruption Act 1988.

x That, in support of the case of the complainant, PW- 2 trap panch witness and PW-3 who is a shadow witness has fully corroborated the evidence of the complainant and thereby proved the pre-trap panchanama as well as panchanama at the time of trap.

x That, apart from PW-2 & 3, PW-4 who is the competent person to give the sanction to prosecute the accused has issued the sanction order as per Exibit-P-10 and he deposed the same before the Hon'ble Court, has fully supported the case of the prosecution.

x That, even looking to evidence of PW-5 & 6, the prosecution has sufficiently proved the demand and acceptance of the illegal gratification by the accused,

but the trial court without appreciation of all these witnesses has wrongly acquitted the accused.

x That, PW-11 who is the Investigation officer who have conducted the investigation in the above case and have 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 person he has not rebutted the case of prosecution and the accused has not adduced any defense evidence except by examining himself, 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.

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.

x That, some more grounds in support of the above grounds would be urged at the time of arguments.

11. Reiterating the above grounds, Sri Subhash

Mallapur learned counsel representing the appellant

vehemently contended that the learned Judge failed to

properly appreciate material on record especially the oral

testimony of the shadow witness who has deposed before

the court with graphic details about the incident that

occurred in the house of the accused on 28.03.2009 at

about 2.30 p.m. and PW.3 being the independent witness

who did not nurture any previous enmity or animosity

against the accused would not falsely depose against the

accused and therefore sought for allowing the appeal and

convict the accused for the aforesaid offences.

12. He also pointed out the fact remains that as on

date of the raid, the work was pending with the accused

inasmuch as sum of `60,000/- was to be released in favour

of the complainant for construction of the kitchen in

midday meals scheme and therefore the prosecution was

successful in proving all ingredients which war required to

attract the aforesaid offences and same has not been

properly appreciated by the leaned trial Judge and sought

for allowing the appeal.

13. Per contra, learned counsel representing the

accused vehemently contended that the material evidence

on record was hardly sufficient to record an order of

conviction against the accused which has been rightly

appreciated by the learned trial Judge and therefore

sought for dismissal of the appeal.

14. He also pointed out that the material on record

clearly indicate that there is a serious contradiction in the

case of the prosecution vis-à-vis the contents of the

complaint and when there is no demand, there could not

have been any acceptance of bribe amount as is argued by

the counsel for the appellant. He also pointed out that the

complainant having turned hostile based on the version of

shadow witness alone; this Court cannot upset the finding

of acquittal recorded by the trial Court. He also points out

that an order of acquittal by duly constituted reinforce

innocence of the accused and two views are permissible in

a given case the two views that favours the accused must

always be preferred as per principles of the criminal

jurisprudence and sought for dismissal of the appeal.

15. In view of the rival contentions following points

would arise for consideration :-

1. Whether the appellant is successful in establishing the case that the accused had extraneous consideration accepted a sum of `10,000/- as bribe in his house on 28.03.2009 at about 2.30 p.m. from the hands of the complainant in order to release the balance amount of `60,000/- for construction of the kitchen room in the midday meals scheme of SDMC at Honnalli Village, Bidar District ?

2. Whether the finding recorded by the learned Trial Judge that prosecution has failed to prove all ingredient to attract the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 is suffering from legal infirmities and perversity and thus calls from interference ?

3. What order ?

16. In the case on hand, the trial Court has framed

the following charges against the accused;

"First - That you accused being public servant working as Head Master in Taluka Panchayat office Basvakalyan, on 28-03-2009 at 2.30 p.m. in your own house at Basvakalyan, demanded and accepted an illegal gratification of Rs.10,000/- from the complainant Smt. Mahadevi wife of Dlilip Jadhav, for showing official favour to her i.e, for releasing the amount sanctioned for construction of kitchen room of Govt. Primary School Honnalli under Akshara Dasoha Scheme and thereby you Accused committed the offence under section 7 of the Prevention of Corruption Act, 1988, and within the cognizance of this Special Court.

2. Second, - That you accused being public servant working as Head Master in Govt. Primary School, Incharge Asst. Director of Akshara Dasoha scheme, Taluka Basvaklayan, demanded and obtained 29-3- 2009 an illegal gratification of Rs. 10,000/- from her on 28-03- 2009 at about 2.30 p.m in your house, at Basvakalyan, for showing official favour to her i.e, for releasing the amount sanction for Construction of kitchen room of Govt. Primary School Honnalli under Akshara Dasoha Scheme which is other than your legal remuneration, and thus you committed criminal misconduct by corrupt or illegal means by demanding and obtaining the. illegal gratification as stated above, and thereby you Accused committed the offence defined under section 13(1)(d) made punishable under section 13(2) of the Prevention of Corruption Act, 1988, and within the cognizance of this Special Court.

And I hereby direct that you be tried by this Court for the said offences."

17. In order to prove the above charges,

complainant examined as PW.1. On perusal of the material

on record, it is seen that PW.1 has not supported the case

of the prosecution and has given a total go-bye to the case

of the prosecution. Though PW.1 has been treated as

hostile and cross-examined by the prosecution, no useful

materials are elicited in her cross-examination inasmuch as

the suggestions made to her by the prosecutor in the

prosecution has been denied by her.

18. Further, to the extent she supported the case

of the prosecution, defence has cross-examined the PW.1.

In such cross-examination it is elicited that the

complainant does not know the Kannada language and she

is acquainted with only Marati language. The complaint is

admittedly in Kannada language and there is no

endorsement in the complaint to the effect that the

contents of the complaint has been explained to the

complainant in Marati language and having know about the

contents of the complaint she has signed the complaint

and she has lodged complaint against the accused.

19. Further PW,3 is the shadow witness who has

supported the case of the prosecution. In his cross-

examination also, there are contradictions pointed out on

behalf of the defence

20. Admittedly, the money was found by the raid

party on the table and as per instructions of the

Investigating Officer, tainted money of `10,000/-

comprising 05 notes of `1,000/- denomination and 10

notes of `500/- denomination have been handed over by

the accused to the hands of the head of the raid party at

that juncture, he has come into contact with tainted

money and therefore colour test has been turned positive.

21. Apart from the evidence of shadow witness,

there is no evidence on record to substantiate the

allegations made against the accused. The evidence of the

Investigating Officer is only in the nature of conducting

experimental panchanama and about the raid and which

will not improve the case of the prosecution in view of the

fact that the complainant has not supported the case of

prosecution.

22. Learned trial Judge in paragraph 21 onwards

has discussed in detail about the lacuna found in the case

of the prosecution. For the sake of certainty, paragraphs

21 to 25 is extracted hereunder :-

"21. PW-1 is the complainant has stated in the evidence that she was Vice President of SDMC to the school and Government had sanctioned sum of Rs.1.00 lakh for constructing of kitchen room under the Akshara Dasoha Scheme and the said amount was deposited in the bank and for releasing of the said amount, a letter is required from the accused. Therefore, the Head Master of the school PW-7 had told her to approach the accused and the complainant stated that for releasing of the said amount, the accused has demanded bribe amount of Rs.10,000/-. Therefore, it is evidence of PW-1 in examination-in-chief that the accused being the Assistant Director of Akshara Dasoha Scheme told the PW-1 he would give letter for releasing sum of Rs.40,000/- and for releasing further amount of Rs.60,000/- asked Rs.10,000/- bribe amount, accordingly, on 28-3-2009 she came over to Bidar and approached Lokayukta Police and lodged complaint. It is evidence in examination-in-chief that the Lokayukta Police have typed her complaint and after typing she put signature on the complaint and the Lokayukta Police have asked whether amount of Rs.10,000/- was brought. The PW-1 in examination-in-chief she stated that she had given ten currency notes of denomination of Rs.500/- and five currency notes of denomination of Rs.1000/- and totally she had given sum of Rs.10,000/-

. During the course of examination-in-chief the PW-1 turned hostile. The PW-1 stated that she had not given amount personally and she has not given any complaint. The Special Public Prosecutor after seeking permission of the court treated the witness as hostile and cross- examined and put suggestions to the PW-1 and PW-1- complainant had stated in the evidence that she had lodged complaint against the accused before the Lokayukta Police, Bidar, as per Ex.P.1 and crime registered and panchas were summoned and she had given sum of Rs.10,000/- as above stated as per MO.1 marked and after completion of all the procedure of smearing phenolphthalein powder on the notes and seizure of chemical in bottle and conducted entrustment panchanama as per Ex.P.3 and had taken photographs in the office.

22. The evidence of PW-1 considered and analyzed with reference to cross-examination it is revealed that the PW-6 Head Master had not stated to the PW-1-complainant already there was amount of Rs. 40,000/- released by the accused and also the PW-6 Head Master had not shown the copy of order to her. It is pertinent to mention allegations in the complaint Ex.P.1 that upon careful reading of the complaint the allegation against the accused is that for releasing of sum of Rs.40,000/- the accused had not asked bribe amount but for release of Rs.60,000/- demanded bribe amount. Therefore, it is revealed from the prosecution papers itself that an amount of Rs.40,000/- was already released for construction of kitchen room for midday meal scheme. When the evidence of PW-1 is analyzed with reference to defence evidence and the documentary evidence produced by the defence, the DW-1 who is President of SDMC, Honnalli Government School had stated that the DW-1 and Head Master have approached the accused and gave application Ex.P.4(d) the amount is to be released on stage wise basis. Ex.P.4(d) is the prosecution document which itself shows that the President of SDMC Committee of the school submitted application to the accused for release of the first phase amount of Rs.40,000/-, accordingly, an amount of Rs.40,000/- was released and thereafter

called upon meeting in the school. Ex.D.1 is the circular issued by the District Planning Office, Sarva Sikshana Abhiyana, Bidar, dated 3-5-2007 that the amount for construction of midday meal scheme is to be released in six equal installment i.e. six stages after ascertaining the stage wise progress of the construction of the kitchen room and after ascertaining whether quality is maintained or not. In the course of cross-examination the PW-1 herself admitted that the construction of kitchen work is not completed and the construction of kitchen room was at the stage when an amount of Rs.40,000/- was released and there is no progress in the construction of kitchen room. Therefore, in this regard, there is a force in the argument canvassed by the counsel for the accused that since the husband of the PW-1 insisted to release the amount in a lumpsum at a stretch and for which there is no scope as per circular Ex.D.1 and therefore as first installment sum of Rs.40,000/- is released and the remaining Rs.60,000/- was to be released after seeing the progress of the construction work. Therefore, in this regard the defence of the accused is more probably than the evidence of PW- 1.

23. Further upon considering the cross- examination of PW-1 with reference to examination-in- chief of PW-1 of lodging complaint there is a direct contradiction between the two versions. In examination- in-chief the PW-1 stated that she went to Lokayukta Police Station, Bidar, and according to her version the complaint was typed and thereafter she put the signature on the complaint. But in the cross- examination the PW-1 stated that she does not know reading and writing of Kannada language and she came to Lokayukta Police, Bidar, along with her husband and got typed complaint in typing pole outside the Lokayukta Police Station. Therefore, there is a direct contradiction revealed in the evidence of PW-1 that on one stretch in examination-in-chief PW-1 stated that her complaint was typed in Lokayukta Police Station, but at another stretch she got typed Ex.P.1 outside typing pole. Therefore, upon considering the evidence of PW-1 is not found to be believable one so far as lodging

complaint whether it is true or not. Therefore, a doubt is crept in the mind of the court whether in this regard genuine complaint is filed or not.

24. Ex.P.4 is document issued by the Block Resource Center Sarva Shiksna Abhiyan, Basvakalyan, which is seized by the Lokayukta Dy.S.P., that on 14-3- 2009 an amount of Rs. 40,000/- was released to the Government Higher Primary School, Honnalli but the trap was conducted on 28-3-2009. Therefore, it is clearly proved that for release of sum of Rs.40,000/- the accused had not made demand of Rs.10,000/-. In cross- examination of PW- 1 in para-17 the PW- 1 herself admitted that on 12-3-2009 she met with accused and the prosecution document itself Ex.P.4 reveals that an amount of Rs.40,000/- was released on 14-3-2009. Since as per circular Ex.D.1 the amount is to be released on stage wise basis after ascertaining progress of the building. Therefore, there is no scope for releasing of the amount at a stretch in a single in a lumpsum. Therefore, in this regard the defence of the accused is more probable than the case of the prosecution. The PW-1 in her evidence has stated that after release of the amount of Rs.40,000/- there was meeting called upon and resolution was passed in regard to amount of Rs.40,000/- was released for construction of kitchen room for midday meal scheme. This resolution was passed on 20-3-2009 as per Ex.D.2(a) resolution produced before the court. The original resolution book is produced to show that on 20- 3-2009 a resolution was passed in this regard. Therefore, it is reveled that already a sum of Rs.40,000/- was released much earlier before PW-1 approaching the accused. Further it is proved that there is no scope as per Ex.D.1 Circular that amount could not be released at a stretch, but is to be released on stage wise basis. In this regard there is no fault found with the accused.

25. Further upon considering the cross- examination of PW-1 there is a doubt arise in lodging complaint whether the said complaint and initiation of criminal case against the accused is genuine one or not.

In the cross-examination in page-24 the PW1 clearly revealed that she came over to Bidar for purchasing of saree, for which she kept Rs.10,000/-. Further the PW-1 admitted in the cross-examination she does not know that before coming over to Lokayukta Police Station it is necessary to bring amount of Rs.10,000/- alleged to be bribe amount to be given to the accused. Therefore, it is revealed that the PW- 1 came over to Bidar along with her husband, but she did not know she was bringing to Lokayukta Police Station and to lodge complaint before the Lokayukta Police. In the cross-examination in page 23 also the PW- 1 had admitted that she had come over to Bidar for her personal work and purchasing of saree. Upon considering and analyzing all the evidences on record available there was no impediment either for the President of the SDMC who is a male person or Head Master of the school to lodged complaint before the Lokayukta Police, but both have used the PW-1 for lodging complaint as per Ex.P.1 before the Lokayukta Police. Therefore, all these events are considered and analyzed with reference to evidence given by the President of SDMC who was examined as DW-1 there appears to be doubtfulness in the genuineness of the initiation of criminal case against the accused by lodging complaint Ex.P.1. The DW-1 President of SDMC of the school in the evidence stated that during release of the amount the accused had not given any trouble. Further the Head Master and President of the SDMC have not at all given any authorisation to the PW-1 to lodged complaint before the Lokayukta Police Station as it revealed in the evidence of PW-1. The DW-1 in the course of cross-examination has stated that he has not given statement before the Lokayukta police that the accused had demanded sum of Rs.10,000/- bribe amount for release of remaining sum of Rs.60,000/-. This evidence can be seen as per Ex.P. 17. Therefore, upon considering the evidence of PW-1 and documentary evidence discussed above and with reference to evidence of DW-1, the evidence of PW-1- complainant is not found to be believable one. Therefore her evidence is rejected."

23. This Court in view of the scope of the appeal

against an order of acquittal, re-appreciated the material

evidence on record.

24. On such re-appreciation this Court finds that

the complainant has not supported the case of the

prosecution and based on the oral testimony of shadow

witness and Investigating Officer alone this Court cannot

hold that the prosecution is successful in establishing the

charges levelled against the accused by placing by cogent

and convincing evidence on record. It is also pertinent to

note that PW.7 who is examined on behalf of prosecution

who is the Headmaster of the school has categorically