Rajkumar S/O Gundappa vs The State Of Karnataka
2022 Latest Caselaw 500 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 12 TH DAY OF JANUARY, 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL NO.200037/2015


BETWEEN

RAJKUMAR S/O GUNDAPPA
AGE: 42 YEARS, OCC:SECOND DIVISIONAL
SURVEYOR , IN TAHSIL OFFICE, R/O AT HOUSE
NO.19/3/147-1, PRATHAP NAGAR BIDAR
                                        ...APPELLANT

(BY SRI SANJAY A. PATIL, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH THE POLICE LOKAYUKTHA
POLICE BIDAR REPRESENTED BY
SPEICAL PUBLIC PROSECUTOR
HIGH COURT OF KARNTAKA
BENCH AT KALABURAGI
                                      ...RESPONDENT

(BY SRI SUBHASH MALLAPUR, ADVOCATE)

   THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C BY THE
ADVOCATE FOR APPELLANT PRAYING THAT THIS HON'BLE
COURT TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 17.03.2015 PASSED BY THE SPECIAL JUDGE AND
PRINCIPAL DISTRICT & SESSIONS JUDGE, BIDAR IN
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SPECIAL CASE (CORRUPTION) NO. 37/2012 ON HIS FILE
CONVICTING THE APPELLANT FOR THE OFFENCE P/U/S 7,
13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT
1988. SET ASIDE THE ORDER ON SENTENCE DATED
18.03.2015 PASSED BY THE SPECIAL JUDGE AND
PRINCIPAL DISTRICT & SESSIONS JUDGE, BIDAR IN
SPECIAL CASE (CORRUPTION) NO: 37/2012 FOR THE
OFFENCES APPELLANT IS CONVICTED FOR, IN THE
INTEREST OF JUSTICE.
E
     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The present appeal is filed by the accused, who has

been convicted in Special Case (Lok) No.37/2012 by the

Principal District and Sessions Judge, Bidar by judgment

dated 17.03.2015, whereby, the accused has been

convicted for the offences punishable under Sections 7,

13(1)(d) and 13(2) of the Prevention of Corruption Act (for

short 'P.C.Act') and ordered to undergo rigorous

imprisonment for a period of five years and to pay fine of

`10,000/- for the offence punishable under Section 7 of

the P.C.Act and ordered to undergo rigorous imprisonment

for a period of seven years and to pay fine of `10,000/- for

the offences punishable under Sections 13(1)(d) read with

Section 13(2) of the P.C.Act with default sentences.

2. Brief facts of the case are as under:

The accused being a Public Servant was working as a

Second Division Surveyor in Tahasil office at Bidar. One

Hasam Ali entered into an agreement to purchase 5 acres

4 guntas of land in Sy.No.225 of Sikandapur village from

one Martin. The said Martin was unable to visit the survey

office for surveying of the land and therefore, he entrusted

the work to Hasam Ali. Earlier owner had filed an

application in the survey office by depositing the requisite

fee. For carrying out survey, the accused demanded illegal

gratification of `10,000/- and out of which, `5,000/- to be

paid in advance and another `5,000/- after completion of

work. Hasam Ali was reluctant to pay the bribe amount

and accordingly, he approached the Lokayukta Police and

lodged a complaint.

3. On receipt of the complaint, the Dy.SP

Lokayukta registered a case and prepared FIR and sent the

FIR in a sealed cover. Thereafter, he secured the panch

witnesses and apprised them about the intended raid and

introduced them to the complainant. Thereafter, the

complainant produced 10 currency notes of `500/-

denomination each and phinaopthlin powder was smeared

on the currency notes and colour test by way of an

experiment is conducted and experimental mahazar was

drafted. Thereafter, the panch witnesses, head of the raid

party and complainant proceeded to the office of the

accused on 04.08.2010 at about 12.20 p.m. and thereafter

they proceeded to a tea shop, which is in the vicinity of the

Tahasil Office, Bidar. In tea shop the accused demanded

the money from the complainant and accordingly, the

complainant handed over the tainted currency notes to the

hands of the accused. Immediately, pre signal was also

given. Immediately thereafter, head of the raid party

raided the accused and recovered the tainted currency

notes from the accused and colour test was conducted.

The colour test was successful and the plain water turned

into pink colour and mahazar was drafted in this regard.

The accused offered an explanation to the incident in

writing stating that he had obtained some of `5,000/- as

hand loan. Immediately, the accused was arrested and

the Lokayukta police conducted a detailed investigation

and filed charge sheet against the accused for the offences

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

Section 13(2) of the P.C.Act.

4. The presence of the accused was secured

before the Special Court and charges were framed. The

accused pleaded not guilty and as such trial was held.

5. In order to prove the case of prosecution,

prosecution examined in all 12 witnesses as PWs.1 to 12.

Among them, PW.1 is the panch witness, PW2 is the

complainant, PW.3 is the shadow witness, PW.4 is one

Martin, who has entered into an agreement with Hasam Ali

for sale of the land. PW.9 is the official superior of the

accused, who is Tahsildar and PW.12 is the Investigating

Officer. The prosecution relied on 20 documents which

were exhibited and marked as Exs.P1 to P20. The

prosecution also relied on the material objects, which were

marked as MOs.1 to 11.

6. On conclusion of the prosecution evidence,

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. However, for the question No.71, he has

answered that a false case has been foisted against him

and as on 04.08.2010 there was no working pending with

him that of the complainant. However, the accused has

failed to offer written statement as is contemplated under

Section 313(5) of Cr.P.C. nor examined himself as a

witness to place his version about the incident on record.

7. Thereafter, the learned Special Judge after

hearing the parties in detail and on consideration of the

material evidence on record convicted the accused for the

aforesaid offences. Being aggrieved by the same, the

accused has preferred this appeal.

8. In the appeal memorandum, following grounds

have been raised:

1. The impugned judgment of conviction passed by the trial court is contrary to law and facts of the case.

2. The trial court has totally ignored the fact that the accused/appellant was working as second division surveyor in Thasildar office but the Lokayuktha Police have obtained sanction from commissioner of weights and measures department Bangalore who is not a competent authority to accord sanction as accused is Working as second divisional surveyor which is totally a different department. Hence the entire investigation is conducted without proper sanction.

3. 11.The trial court has failed to notice that there was no demand by the accused so as to show official favourism as the work was already completed 3 months prior to the alleged trap i.e. the work was completed on 02.05.2010. And the file was sent to record of rights section and hence there was no work pending at the time of alleged demand.

4. The trial court has totally ignored the admission of P.W.-11 who is the sanctioning authority to the effect that the investigating officer had not submitted entire records before him and therefore it is evident that P.W.-11 has not verified entire records but has given sanction in a mechanical way without application of mind and hence entire process of giving sanction is vitiated.

5. The trial court has totally ignored the fact that in the complaint denomination of currency notes are not mentioned and further voice box of the mobile is not seized and was not sent to FSL for the purpose of scientific test and the prosecution does not have any proof to show that the voice recorded in the cassette is that of accused only.

6. The trial court has totally ignored the fact that complaint was lodged on 04.08.2010 but much prior to it i.e. on 12.05.2010 the work was completed on the part of accused and therefore just because there is recovery of tainted currency notes from the possession of the accused is not a ground to show that accused is guilty of the offences as alleged and there is a difference between tainted currency notes and illegal gratification and the accused has not demanded any illegal gratification and hence recovery of tainted notes Would not constitute offence as alleged by the prosecution.

7. Trial court totally ignored the fact that complainant/ P.W.-2 is a third party and he has nothing to do with the land Sy. No. 225, he is not a aggrieved person and hence P.W.-2 does not have locus standi to lodge complainant before Lokayuktha. At the most the aggrieved person will be the owner of the Land who is P.W.-4, but P.W.-4 has not lodged the complaint.

8. The trial court has totally ignored the fact that the accused had already performed his duty and there was no work pending with the accused pertaining to the work of P.W.-2, 3 & 5 as per their evidence and as per the evidence of P.W.-9 prosecution has failed to prove that there was work pending with the accused pertaining to the work of P.W.-2, P.W.-3 and P.W.-5 and for that work the accused had demanded the bribe amount and received bribe amount and hence no offence is constituted.

9. The trial court has not properly assessed the evidence of P.W.-2,P.W.-3, P.W.-5 and P.W.-9 which goes to the route of prosecution case and thus as erroneously convicted the appellant.

10. It is submitted that, the trial court has erroneously passed maximum sentence for the offences accused is convicted for.

11. It is submitted that, viewed at any angel the impugned judgment of conviction suffers from serious

infirmities and question of law and misconception in appreciating evidence of prosecution witnesses.

12. It is submitted by the appellant that this Hon'ble Court be pleased to permit his counsel to urge other some more grounds at the time of argument.

13. I t is submitted that no other appeal is pending or filed by the appellant before any court of law for the same cause of action except the present appeal.

9. Reiterating the above grounds, the learned

counsel for the appellant/accused vehemently contended

that PW.9 in his evidence has categorically admitted that

the work of the complainant had already been completed

as on 12.05.2010 and therefore, even assuming that the

prosecution has proved all the ingredients to attract the

offences alleged against the appellant/accused, no case is

made out so as to convict the accused for the aforesaid

offences.

10. He also contended that PW.9, who is Tahsildar

and official superior of the accused admitted in the cross

examination that as on 12.05.2010 he had already sent

the revenue report to the concerned branch and on

10.02.2010, there was already mutation of the entry in the

RTC extract.

11. He also pointed out that the material evidence

on record clearly shows that the complainant is no way

connected with the work of PW.4-Martin, especially in the

absence of any power of attorney being executed in favour

of Hasam Ali and as such, the complainant is not a proper

person to contact the accused in respect of the alleged

work pertaining to Sy.No.225 of Sikandarpur village and

therefore, the conviction order passed by the trial Court is

bad in law and sought for allowing the appeal.

12. Alternatively, he contended that sentence

passed by the Trial Judge is on the higher side and sought

for showing leniency and appropriately sentence the

appellant in the event this Court maintaining the order of

conviction.

13. Per contra, Sri Subhash Mallapur learned

counsel representing the Lokayukta supported the

impugned judgment by contending that the material on

record conclusively establish that for the pending work that

is for rectification of the entries in the RORs in respect of

land bearing Survey No.225 belonging to one Martin,

erstwhile owner had filed an application before Tahasil

office for survey and at that juncture, the accused has

demanded a sum of `10,000/- as the illegal gratification

and it was agreed to pay a sum of `5,000/- be paid as

advance and balance `5,000/- be paid after completion of

the work and in that regard, as on the date of the raid,

tainted money has been handed over to the

appellant/accused, which has been recovered from the

hand accused near the tea shop, which is situated in the

vicinity of the Tahasil office, Bidar and colour test having

stood positive, these aspects have been rightly appreciated

by the learned trial Judge and passed an order of

conviction the accused and sought for dismissal of the

appeal.

14. Insofar as the alternate submission is

concerned, he submits that what is an appropriate

sentence to be awarded in the given case has been

discussed in detail while discussing the order on conviction

by the learned trial Judge and sought for dismissal of the

appeal in toto.

15. In view of the rival contentions, following

points would arise for consideration :-

1. Whether the prosecution has successful established all ingredients to attract the offences punishable under Sections 7, 13(1)(d) and 13(2) of the P. C. Act?

2. Whether the impugned judgment is suffering from illegality, error of jurisdiction, perversity and thus calls for interference?

3. Whether the sentence is excessive?

16. In the case on hand, the following charges

were framed :-

First, - That on 4-8-2010 at about 21.20 noon accused being public servant working as Second Division Surveyor in Tahasildar Office at

Bidar, demanded and accepted an illegal gratification of `5,000/- from the complainant-

Mohammed Hasam Ali in the hotel of Abdul Hameed near Tahasil Office, Bidar, for showing official favour to him i.e., for surveying land Sy.No.225 of Sekindrapur and thereby committed the offence under Section 7 of the Prevention of Corruption Act, 1984, and within the cognizance of this Special Court.

2. Second, - That you accused being public servant working as Senior Division Surveyor in Tahasildar Office, Bidar, on the above said date, time and place, demanded and obtained an illegal gratification of `5,000/- from the complaint, for showing official favour to him i.e., for surveying land Sy.No.225 of Sikindrapur, 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, 1984, and within the cognizance of this Special Court.

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

Regarding point Nos.1 and 2 :-

17. In order to prove the charges levelled against

the accused, prosecution in all examined 12 witnesses

among them Jagadish is examined as PW.1. He deposed

before the court that he is working as a First Division

Assistant in Legal Audit Office, Bidar. He is the shadow

witness who has participated in the trap.

18. He deposed before the court about the

experimental mahazar and actual trap that took place on

04.08.2010 in the tea shop (hotel). He also deposed that

as per the instructions of the head of the raid party,

complainant handed over tainted notes to the hands of

accused on demand and immediately designated pre signal

was given who were watching the incident from a distance

arrived on the scene and from the custody of the accused

tainted 10 currency notes of `500/- denomination was

recovered. He also deposed about the color test wherein

plaint water turning into pink color. In his cross-

examination no useful materials are elicited so as to

disbelieve his version. Minor contradictions found in the

evidence of PW.1 would only establish that he is a natural

witness.

19. PW.2 is the complainant. He deposed about the

filing of application seeking survey of the land bearing

Sy.No.225 of Sikidrapur Village measuring 05 acres 04

guntas and accused demanding `10,000/- for the same as

illegal gratification and it was agreed that sum of `5,000/-

would be paid as advance and balance of `5,000/- would

be paid after the work is completed. Since the complainant

was not interested in paying the illegal gratification to the

accused, he informed the lokyakuta police. He also

deposed in the line with the examination-in-chief of PW.1

about the experimental mahazar and also the actual trap.

In his cross-examination, he has answered that between

11.00 to 12.00 noon he had been to lokayukta police and

he has informed about the demand made by the accused

and thereafter the trap having taken place. He has

specifically answered that he did not know in which section

his application was pending.

20. In his further cross-examination, he has

answered that Manikappa, Police Constable was present at

the time of trap. He denied that he has deposed before the

Court as per the instructions of Manikappa. He also denied

the suggestion that himself, Martin and others have

colluded and filed a false case against the accused.

21. One Mohammad Riyazuddin is examined as

PW.3 and he has accompanied PW.2 and a private

witness. He also deposed supporting the case of

prosecution. He has negotiated the bribe amount on behalf

of the complainant. In his cross-examination also no useful

material is elicited.

22. Owner of the land bearing Sy.No.225 is Martin.

He is examined as PW.4. He deposed before the court that

there was an agreement and he identified the same and

the ROR extract. His evidence is formal in nature.

23. Afsar Moinouddin is the person who is earlier

owner of the land bearing Sy.No.225 and who had sold the

property in favour of Martin. His evidence is also a formal

in nature.

24. Shivakumar is the co-panch. He has also

supported the prosecution case about the experimental

mahazar and trap mahazar. In his cross-examination also

no useful material is elicited so as to disbelieve his

evidence.

25. PW.7-Veereshetty is the PWD Engineer who

prepared a sketch of the place of the incident and his

evidence is also a formal in nature.

26. One Ganapathi is examined as PW.8 he did not

support the case of the prosecution properly and therefore

he has been treated as hostile witness.

27. Jagannath is Tahasidlar who was also official

superior of the accused is examined as PW.9. In his cross-

examination he has admitted that the application was filed

for survey of land bearing Sy.No.225 and a report has

been filed in this regard on 12.05.2010. He also answered

that on 10.02.2010 the mutation in respect of the land

bearing Sy.No.225 had already taken place and as on the

date of the trap, there was no pending work in the Tahasil

office with the accused.

28. PWs.10 and 12 are the Investigating Officers

and their evidence is formal in nature.

29. PW.11 is the officer who has accorded the

sanction to prosecute the accused. In his cross-

examination it is elicited that on 12.05.2010 survey work

was over but he has answered that he had not filed the

measurement report.

30. It is also elicited that as per Ex.P.15, accused

has already submitted the report to the Tahasildar and as

per the said report, in Ex.P.3 there is mutation of the

name.

31. Based on the above evidence, it is contended

that as on the date of trap, the work was still pending with

the accused inasmuch as he had not filed the

measurement report and there was a discrepancy about

the entry found in the ROR extract and in that regard, the

complainant had approached the accused for the

rectification and accused had demanded illegal gratification

in respect of the same and therefore the contention of the

accused that there was no work pending as on the date of

incident cannot be countenanced in law.

32. In the case on hand, complaint averments

clearly reveal that PW.5 has filed an application in the

Tahasilr office, Bidar for survey of the land bearing

Sy.No.225 of Sikindrapur village. In that regard, no doubt

as is answered by PW.9 and the material evidence on

record, mutation entry has taken place from Afsar

Moinouddin to Martin.

33. Afsar Moinouddin is examined as PW.5. He has

deposed before the court that he had the sold property of

Sy.No.225 to the extent of 05 acres 04 guntas to PW.4

Martin. He has also deposed before the court that he had

paid the fees for the survey of the land to the extent of 05

acres 04 guntas in respect of land bearing Sy.No.225 of

Sikindrapur Village. Ex.P.8 is the document which has been

identified by PW.4-Martin. Ex.P.8 is the complaint which

was accompanied by photocopy of a letter dated

24.08.2009 whereby Mohammed Afsar has sought for

survey of the land bearing Sy.No.225 in Sikindrapur village

along with the same, copy of the agreement to sell with

possession was annexed wherein Afsar Moinouddin has

entered into an agreement with Martin. Thereafter, Martin

had agreed enter into to an agreement with Hasam Ali and

Hasam Ali who in turn contacted the accused in respect the

application given by Afsar Moinouddin seeking survey of

the land bearing Sy.No.225 to the extent of 05 acres 04

guntas.

34. Along with the same, the RTC extract is also

filed wherein it has been stated that as per the same, RTC

extracts contains the name of Afsar Moinouddin in respect

of land bearing Sy.No.225 of Sikindrapur Village, Kamtana

Hobli, Bidar district stands in the name of Afsar

Moinduddin.

35. The Tahsildar, who is the official superior of

the accused/appellant has been examined as PW.9. Based

on the annexures filed along with Ex.P15, admitted in the

cross examination that the pending work of the application

filed by Afsar Moinoddin was completed on 10.02.2010 and

12.05.2010. In this regard, a report is made available

before the Trial Court, which is part of Ex.P15 in the Trial

Court records in ink page Nos.114 and 115. In page

No.114, it has been mentioned that there is a request

made for reduction of the extent of the land. So also in

page No.115, a separate measurement is shown in respect

of Afsar Moinoddin and others. On comparison of these two

documents, it is seen that there is no variation of the land

possessed by Afsar Moinoddin. It is to be noted that PW.5

- Afsar Moinoddin has transferred the land in favour of Sri

Martin, who is examined as PW.4. Said Martin in turn has

entered into an agreement with PW.2, who is the

complainant in this case. Therefore, much cannot be made

out of the admission given by PW.9-Tahsildar that there

was no work pending as on the date of the trap with the

appellant/accused.

36. Suffice to say that the documentary evidence

placed by the prosecution would not depict that there was

no work pending with the appellant. Therefore, the

contention urged on behalf of the accused that as on the

date of the trap, there was no working of the complainant

with the appellant/accused aware by the accused is

entitled for an order of acquittal following the dictum of the

Hon'ble Apex Court in the case of A.Subair v. State of

Kerala reported in (2009) 6 Supreme Court Cases 587

cannot be countenanced in the case on hand.

37. The another point on which the accused sought

for recording an order of acquittal is that PW.11, who has

issued sanction order vide Ex.P18 has not applied his mind

in according the proper sanction to prosecute. It is

pertinent to note from cross-examination of PW11, he has

specifically referred to the documents and he has

withstood the searching cross-examination on behalf of the

accused. Furthermore, material on record inclusive of the

sanction order marked at Ex.P18 is perused by this Court

in light of the arguments canvassed on behalf of the

accused. On such perusal, even though there are minor

discrepancies, which would show that PW.11 has issued

the sanction order and the same establish that PW.11 has

applied his mind and then issued the sanction order and

the answers obtained in the cross-examination of PW.11 is

hardly sufficient to hold that he has issued Ex.P18 in a

mechanical manner. Nor it was prepared by somebody

and he has only subscribed his signature in Ex.P18.

38. In view of the foregoing discussion, since the

colour test stood positive and shadow witness and the

complainant having supported the case of the prosecution

in entirety and material evidence on record showing that

as on the date of the trap, the application filed by PW.5

seeking survey of the land bearing No.225 was not yet

finally disposed off by the appellant/accused clearly

establish all ingredients to attract the offences punishable

under Sections 7 and 13(1)(d) which is punishable under

Section 13(2) of the P. C. Act and accordingly this Court is

of the opinion that the prosecution has successfully

established the offences alleged against the appellant

beyond all reasonable doubt and there is no legal infirmity

or perversity in the finding of the Trial Court holding the

appellant guilty of the aforesaid offences. Hence, point

Nos.1 and 2 are answered in the negative.

Regarding point No.3:

39. The Trial Court has convicted the accused for

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

with Section 13(2) of the P. C. Act and sentenced as

referred to supra. The material on record is re-appreciated

and taking note of the age of the accused/appellant being

40 years at the time of commission of the offences and

now being aged about 49 years, this Court is of the

considered opinion that modifying the sentence ordered by

the Trial Court for the offences punishable under Section 7

of the P. C. Act for a period of 4 years and simple

imprisonment for a period of five years for the offences

punishable under Section 13(1)(d) read with Section 13(2)

of the P. C. Act would meet the ends of justice.

40. Having said thus, the fine imposed by the trial

Court in a sum of `10,000/- each for the aforesaid offences

needs to be enhanced to `20,000/- each, would meet the

ends of justice. Accordingly, point No.3 is answered and

the following:

ORDER

The appeal is allowed in part.

While maintaining the conviction of the

accused/appellant for the offences punishable under

Section 7 and 13(1)(d) read with Section 13(2) of the P. C.

Act, the sentence as ordered by the Trial Court is modified.

The accused/appellant shall undergo simple imprisonment

for a period of four years and to pay fine of `20,000/- each

inclusive of `10,000/- already imposed and paid by him for

the offence punishable under Section 7 of the P.C.Act and

for the offence under Section 13(1)(d) read with

Section 13(2) of the P. C. Act, he shall pay fine of

`20,000/- and to undergo simple imprisonment for a

period of five years.

If there is a failure to pay the enhanced fine amount,

the accused/appellant shall undergo six months simple

imprisonment on each count.

It is made clear that both the sentences shall run

concurrently and accused/appellant is entitled to the

benefit of Section 428 of Cr.P.C., if any.

Office is directed to return the trial Court records

with a copy of this order forthwith for facilitating the trial

Court to issue the modified conviction warrant.

The accused/appellant is granted time till

31.01.2022 to surrender before the Trial Court for serving

the remaining part of the sentence.

Sd/-

JUDGE

Srt/sn