Karnataka High Court

State Of Karnataka vs J.Nagaraj S/O J.Hanmanthappa on 17 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17 TH DAY OF JANUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200016/2016


BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
(LOKAYUKTA), HIGH COURT OF
KARNATAKA, GULBARGA BENCH.
                                         ... APPELLANT

(BY SRI SUBHASH MALLAPUR, SPL. PP)


AND:

J.NAGARAJ S/O J.HANMANTHAPPA
AGE: 33 YEARS,
OCC: ASSISTANT STORE KEEPER,
INCHARGE BRANCH OFFICER,
GALAG SUB-DIVISION, GESCOM, DEODURGA,
TQ & DIST: RAICHUR R/O: LINGASUGUR,
DIST: RAICHUR-584 101.
                                    ... RESPONDENT

(BY SRI ISWARAJ S. CHOWDAPUR, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF THE CRIMINAL PROCEDURE CODE
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
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JUDGMENT AND ORDER OF ACQUITTAL DATED 18.08.2015
PASSED IN SPL CASE NO.6/2014 ON THE FILE OF THE II
ADDL. DIST AND 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, SET ASIDE THE
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL
PASSED BY THE COURT BELOW BY ALLOWING THIS
CRIMINAL APPEAL AND CONVICT AND SENTENCE THE
ACCUSED/RESPONDENT, FOR THE OFFENCES WHICH HE
HAS BEEN CHARGE SHEETED IN ACCORDANCE WITH LAW.

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

                       JUDGMENT

Present appeal is filed by the State - Lokayukta

police challenging the order of acquittal passed in Special

Case No.6/2014 by the II Additional District and Sessions

Judge, Raichur dated 18.08.2016.

2. Brief facts of the case are as under:

One Hydar Ali S/o Mehaboob Sab, the Junior

Lineman, GESCOM, Deodurga lodged a complaint before

the Lokayukta police station on 05.11.2013 contending

that while he was working as a Junior Lineman of Galag

Section of Deodurga taluka in the department of GESCOM,

due to domestic problems and personal inconvenience to

discharge his duties at Galag Section, he applied for

transfer by filing a necessary application before the

Superintendent Engineer GESCOM, Raichur. His application

was considered favourably and there was an order of

transfer from Galag Section to Chandraband Section as per

the order dated 17.10.2013 by the Superintendent

Engineer. Thereafter, he contacted the accused - Nagaraj,

who is the Section Officer at Galag in GESCOM and

requested him for relieving him from his duties. But, said

Nagaraj instead of relieving the complainant by obeying

the transfer order, he sought bribe of Rs.15,000/-. The

complainant was not interested to pay so much bribe

amount and ultimately he negotiated and the accused

agreed to receive Rs.10,000/- as the bribe. The

complainant was not inclined to pay the said bribe amount

and accordingly, he recorded the conversation between

himself and the accused on his mobile phone and lodged a

complaint to the Lokayukta police.

3. The Lokayukta police after confirming about

genuineness of the demand made by the accused arranged

for a trap by registering a case. Thereafter wards, the

experimental mahazar was conducted by securing two

independent witnesses and trap was laid on 17.10.2013,

where under, the Lokayukta police could seize the tainted

money from the custody of the accused and ultimately

arrested the accused and laid a charge sheet after

thorough investigation.

4. After submission of the charge sheet to the

Special Judge, the learned Judge in the Trial Court took

cognizance of the alleged offences punishable under

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

of Corruption Act (for short 'P. C. Act'). The accused

pleaded not guilty and therefore trial was held.

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

in all 12 witnesses were examined on behalf of the

prosecution as PWs.1 to 12 and 40 documents were

exhibited and marked as Exs.P1 to P40. Six material

objects were also relied on by the learned trial Judge and

marked as MOs.1 to 6.

6. Thereafter, the accused statement as

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

wherein, the accused has denied all the incriminatory

materials found against him in the prosecution evidence,

but, did not chose to place his version on record.

7. Thereafter, the learned trial Judge heard the

parties and by judgment dated 18.08.2015 and dismissed

the case of the Lokayukta and acquitted the accused.

Being aggrieved by the same, Lokayukta is in appeal.

8. In the appeal memorandum, following grounds

have been raised:

x That, the Trail 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 chargesheeted, hence the 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 12 witnesses as PW-1 to PW-12 and got marked Ex P-1 to P-40. 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, the complainant who has been examined asPW-1, though has turned hostile by denying the contents of statement given by him before the police, but the Complaint given by him has been marked as Exhibit P- 1,admitting his signature, hence basing the judgment of acquittal solely on the evidence of the complainant is not correct.

x That, PW-2 who is a panch witness has deposed that the Lokayukta Police washed both the hands of the accused in a solution and it turned into pink colour and he also identifies the article No.4 & 5 which are marked as MO- 1 & 2. but non consideration of this important aspect of the evidence has led to passing of the order of acquittal.

x That, PW- 3 who is shadow witness has deposed that he has accompanied the complainant to the hotel where the bribe amount was given to the accused and also deposed that after the signal give by the complainant regarding handing over of tainted money to the accused and then the Lokayukta Police coming and apprehending the accused and further deposed regarding washing of the hands and also the shirt of the accused wherein he has kept the tainted money, which turned into pink colour, but the trail court treating his has partly hostile is incorrect.

x That, PW-7 has deposed regarding the service particulars of the accused along with letter marked as perEx.P34 &

35. and supported the case of the prosecution.

x That, PW-8 who has visited the place of occurrence and has drawn the sketch and submitted to the authorities, has deposed the same before the Special Court, but the trail court has not at all considered this aspect and wrongly acquitted the accused.

x That, Pw-9 who was the incharge section officer GESCOM has deposed that, he came to know regarding the case registered against the accused and also came to know that the accused was trapped by the Lokayukta Police, but the trail court did not consider this evidence necessary to convict the accused persons is incorrect.

x That, the prosecution has examined PW-10 who has deposed in his evidence that regarding sanction to prosecute the accused person, and supported the case of the prosecution.

x That, PW-11 who has stated in this evidence about examination of the articles No.1 to 9 as per the Lokayukta Office letter and also deposed regarding detection of presence of phenolphthalein on the right hand and left hand fingers washes of the accused and he has also issued the report as per Ex.P-39, but the trail court not Considering this important evidence in the case has wrongly acquitted the accused.

x That, PW- 12 who is the IO who has conducted investigation in the above case 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 Or 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 andin case of Madhukar Bhaskarrao Joshi V/s The Stateof Maharashtra.

x That, viewed from any angle the impugned judgment and order of acquittal passed by the trail 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.

9. Reiterating the above grounds, the learned

Special Public Prosecutor appearing for the appellant -

Lokayukta vehemently contended that the trial Court

grossly erred in not properly appreciating the material

evidence on record and sought for allowing the appeal.

10. He also pointed out that just because the

complainant and PW.2 have not supported the case of the

prosecution in toto, has not caused any serious dent in the

case of the prosecution and the support made by the

witnesses partly should have been taken note of by the

learned trial Judge while passing the impugned judgment

and therefore, sought for allowing the appeal.

11. Per contra, the learned counsel for the

respondent - accused supported the impugned judgment

contending that the complainant and the shadow witness

have not supported the case of the prosecution in toto.

12. He further contended that mere recovery of

the tainted currency notes from the custody of the

accused/respondent would not ipso facto result in an

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

Section 13(2) of the P. C. Act, which has been rightly

appreciated by the learned trial Judge and sought for

dismissal of the appeal.

13. In view of the rival contentions made by the

learned counsel for the parties, the following points would

arise for consideration.

1. Whether the appellant - Lokayukta has established that the accused/respondent has committed the offences punishable

under Sections 7, 13(1)(d) read with Section 13(2) of the P. C. Act beyond all reasonable doubt?

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

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

appellant, PW.1 is examined. He deposed that he is not

acquainted with the panch witnesses. But, he is

acquainted with the accused. He also deposed about he

working as a lineman at Chandraband Section, GESCOM,

Raichur. He has been transferred in the year 2013.

Subsequent thereto, he did not support the case of the

prosecution except admitting the signature on the

complaint marked at Ex.P1.

15. He has specifically deposed in his examination-

in-chief itself that accused did not make any demand for

bribe and under his signature, the Lokayukta police have

falsely prepared a complaint. Since he did not support the

case of the prosecution, he has been treated as hostile

witness by the learned Public Prosecutor and cross

examined him by confronting the contents of the

complaint. However, in such cross examination, the

prosecution is unable to elicit any useful material so as to

hold that the complainant is deposing falsely in order to

support the accused.

16. PW.2 - Ramesh is the Second Division

Assistant working in RTO office. He deposed that he is not

acquainted with another co-pancha, but, he is acquainted

with the accused. He further deposed that Lokayukta

police took his signature on certain papers when he was

alighting from the bus from Deodurga at about 6.30 p.m.

He has stated that the complainant and another person

were there and both of them had gone to hotel and as per

the police, he has subscribed the signature, but, he has

not participated in experimental mahazar or the trap

mahazar. Therefore, he has also been treated as hostile

witness by the prosecution and cross examined him. In

such cross examination, the prosecution is unable to elicit

that PW.2 has been acted as shadow witness and has seen

the accused demanding the bribe amount and the

complainant handing over the tainted currency notes to

the accused and raid party recovering the tainted currency

notes from the custody of the accused and the colour test

answering in positive.

17. With the above evidence on record, the Trial

Court relied on the judgment rendered by the coordinate

Bench of this Court reported in 2014 Criminal Rulings

574 in the case of State of Karnataka Vs. Jayanthi

wherein, it has been held as under:

"Prevention of Corruption Act 7, 13 (1) (d) R/w Section 13 (2) - Criminal Procedure Code 1973 - Section 378 illegal gratification - acquittal

- as far complainant is concerned, he turned hostile and has not supported the case of prosecution - when there is no acceptable and cogent evidence from the side of prosecution about accused demanding and accepting the bribe amount from complainant, only evidence of prosecution that, when right hand wash of accused was taken in phenolphthalein

Powder and turned into pink colour has no relevance at all - there are no valid and justifiable grounds for Court to interfere into Judgment and order passed by Trial Court - appeal dismissed.".

18. The trial Court after relying on the aforesaid

judgment of this Court recorded a finding that it is

mandatory on the part of the Lokayukta to establish the

demand and acceptance of the tainted money to secure an

order of conviction for the offences punishable under

Sections 7, 13(1)(d) read with Section 13(2) of P. C. Act

and in the absence of any cogent evidence placed by the

prosecution in this regard, the accused/respondent is

entitled for an order of acquittal.

19. This Court being the appellate Court, re-

appreciated the material evidence on record and this Court

does not find any serious infirmity in recording such a