The State Of Karnataka vs M.Raghunath S/O. M Gundacharya
2022 Latest Caselaw 11038 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 21ST DAY OF JULY 2022

                             BEFORE

           THE HON'BLE MR.JUSTICE K. NATARAJAN


               CRIMINAL APPEAL NO. 2832 OF 2013

BETWEEN

THE STATE OF KARNATAKA
BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH P.S.I. LOKAYUKTA,
P.S. KARWAR.
                                                .....APPELLANT
(BY SRI. ANIL KALE, ADVOCATE)


AND

M. RAGHUNATH S/O. M.GUNDACHARYA
OCC: RETIRED TASHILDAR, KARWAR,
AGE: ABOUT 66 YEARS,
R/O. SHIMOGA TOWN,
R/O. CUSTOMS QUARTERS,
KARWAR.
                                             ......RESPONDENT
(BY SRI. SHRIKANT T. PATIL, ADV.)
                                    2




      THIS    APPEAL IS FILED UNDER SECTION 378(3) OF CR.P.C.
SEEKING TO GRANT A LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL AND TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 18.10.2012, PASSED BY THE DISTRICT AND
SESSIONS     JUDGE,   UTTARA   KANNADA,        KARWAR   IN   SPL.   CASE
NO.67/2005 BY ALLOWING THE PRESENT APPEAL AND TO PASS A
JUDGMENT OF CONVICTION AND SENTENCE THE RESPONDENT/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 7, 13(1)(d) READ
WITH SECTION 13(2) OF P.C. ACT, 1988.


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



                             JUDGMENT

This appeal is filed by the State being aggrieved by the

judgment and order of acquittal passed by the District and Sessions

Judge, Uttar Kannada, Karwar District (herein after referred to as

the 'Trial Court') in Special Case No.67/2005 dated 18.10.2012,

where by acquitted the respondent for the offence punishable under

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

Corruption Act, 1988 (for short 'P.C. Act').

2. Heard the learned Special counsel for the appellant-

Lokayukta and counsel for the respondent/accused.

3. The ranks of the parties before the Trial Court is

retained for the convenience of the Court.

4. The case of the prosecution is that the accused said to

be working as a Tahasildar in Karwar Taluka Office, the complainant

one Baburao Nayak approached the accused on behalf of

CW.8/Gunavanti in respect of documents in Sy.No.180/1 situated at

Todur village for the purpose of cutting mango trees, jack fruit

trees, soapnut tress and also the trees have been transportation

the same. In order to obtain the permission from the forest

authorities, the complainant approached the accused for according

the permission for that, the accused alleged to have been

demanded bribe of Rs.2,000/- for forwarding the report to the

forest authority in his favour. The complainant not wiling to pay

the bribe amount and lodged the complaint to the Lokayukta Police.

Accordingly the Lokayukta Police registered the FIR in Crime

No.1/2005 and trap was set up, when the complainant hand over

the cash of Rs.2,000/- to the accused when the accused accepted

they have caught hold the accused on 15.04.2005 and arrested

him. The Police filed the charge sheet against the accused for the

aforesaid offences. After taking the cognizance by the Special Court

the charges were framed, the accused denied the charges and

claims to be tried. In order to prove the case, the prosecution

examined four witnesses and got marked 20 documents. After

completion of the evidence, the prosecution the statement under

Section 313 is recorded when incriminating evidence read out to the

accused, he has denied. However he has got marked Ex.D.1 and

Court also got marked documents Ex.C-1 to C-3 and 12 material

objects. After hearing the arguments the Trial Court acquitted the

accused/respondent by the impugned judgment dated 18.10.2012

hence the Lokayukta filed this appeal before this Court.

5. The learned Special Counsel for the appellant has

contended that the complainant approached the accused for

according permission and in order to forward the report to the

Forest Office the accused demanded Rs.2,000/- and the complaint

came to be filed before the Police after registering the case, a trap

was set up and sent Rs.2,000/- to the complainant and accused

asked about the money, previously complainant gave Rs.1,000/-

the same was received and kept in the pocket by the accused and

also demanded other Rs.1,000/-, therefore the complainant has

given and the accused has received and kept under the file on the

table. At that time some person was came therefore the accused

put one more file on the amount, thereafter he has been trapped.

There is categorical admission by the accused for receiving the

money and demand acceptance is proved by the prosecution. HE

further contended that the PW-1 clearly supported the prosecution

case. PW-3 who is shadow witness also supported the prosecution

case, which corroborates with the evidence of the Investigating

Officer and panch witnesses. Thereby the prosecution successfully

proved the case against the accused. The hand wash of the

accused was turned into pink color it was also proved in FSL report.

Thereby it is clear case of demand acceptance by the accused.

Therefore, it is contended that the Trial Court committed error in

acquitting the accused, once prosecution is able to prove the

acceptance of money, the accused required to rebute the evidence

and presumption available to the prosecution under Section 20 of

the P.C. Act and therefore prayed for convict the accused.

6. Per contra learned counsel for the accused supported

the judgment of the Trial Court and contended that there is lot of

contradiction in respect of acceptance of money and there is no

demand made by the accused, except the money was kept on the

table which is not received by the accused. Even the Investigatin

Officer stated that no money recovered from the pant pocket of the

accused, the money was recovered from the files kept on the table.

Where the complaint stated amount was recovered from the pant

pocket, there is a material contradiction in the acceptance of money

in the evidence of PWs-3 and 4. The PW-3 also stated there is no

recovery of money from his pant pocket, therefore there is no

corroboration in the evidence of the PWs.1, 3 and 4, in order to

prove that the accused/respondent demand accepted the bribe.

He further contended that the complainant is not at all a authorized

person for cutting the tress. One Gunavanti who was the owner of

the land she has not made any application, she also not examined

and no General Power of Attorney was executed by the Gunavanti

in favor of the complainant has been produced, therefore, the

contention of the complainant is not acceptable. Apart from that

the learned counsel contended that the son of the complainant is

press reporter, and the complainant is in a habit of filing false cases

against the officials, therefore the son of the complainant was

departed from the District and the son of the complainant himself

took the photographs of the trap proceedings and he was interested

person in order to implicate the accused falsely, hence the

complaint came to be filed. The recovery was not proved beyond

reasonable doubts and there is no official favour, mere acceptance

without demand cannot be held guilty. There is lot of contradiction

in the evidence of PWs-1 to 4. Therefore the question of convicting

the accused does not arise. The shadow witness also not properly

stated about the demand acceptance. Such being the case, the

question of reverse the judgment of acquittal does not arise.

Hence, he prayed for dismissing the appeal.

7. Having heard the arguments and perused the records.

8. The points would arise to my consideration are:

            i)    Whether the prosecution proves beyond
            all reasonable doubts that the accused being
            the   Tahasildar    demanded      and     accepted
            Rs.2,000/-    for   doing   official    favour   to

forwarding information to the forest office and

the Police trapped him thereby the prosecution proves that he has committed the offences under sections 7, 13(1)(d) read with Section 13(2) of P.C. Act beyond reasonable doubts?

             ii)    Whether      the   judgment      of    acquittal
             passed   by   the    Trial    Court   calls   for   any
             interference by this Court?

             iii)   What order?

7. It is well settled by the Hon'ble Supreme Court that

normally in the criminal case the presumption of innocence prevails

until the prosecution proves the guilt and once the accused was

tried and acquitted, the accused will get double degree of innocence

and the appellate Court normally shall not interfere in the order of

acquittal. Unless the finding is perverse and no proper appreciation

of evidence on record, otherwise the Court cannot reverse the

finding. By keeping the principals kept in mind and perused the

records.

8. On perusal of records, the case of the prosecution is

that the accused being the Tahasildar demanded Rs.2,000/- as

bribe or illegal gratification for forwarding the report to the forest

authority for providing the permission for the complainant for

cutting the trees in the land belongs to one Gunavanti. To prove

the case, the prosecution examined four witnesses. PW-1 is the

complainant, PW-2 is the panch witness to the entrusted

panchanama, PW-3 is the shadow witness and PW-4 is the

Investigating Officer. Ex.P.1 is the complaint, Ex.P.2 is the

panchanama, Ex.P.3 is the Trap panchanama, Ex.P.4 is the

statement of the accused, Ex.P.5 to 16 are the photos, Ex.P.17 and

18 are the documents in respect of work pending by the accused,

Ex.P.19 is the FSL report and Ex.P.20 is the FIR.

9. On perusal of the evidence of PW-1 has deposed that he

has purchased the trees belongs to one Gunavanti and for the

purpose of cutting the trees he had approached the Government for

seeking permission and therefore he approached the Tahasildar on

13.04.2005 and filed the application, for that the accused

demanded Rs.2,000/- as bribe for providing him permission.

Therefore, he lodged the complaint. The complaint is marked by

the Trial Court as per Ex.P.1. Based upon the complaint, the Police

registered the FIR as per Ex.P.20. The Police secure the PW-2 and

one of the panch in the Police station, then they smeared the

phenolic powder on the currency note of Rs.2,000/-, where the

denomination of Rs.500/- of two notes and 10 notes of Rs.100/-.

Then they asked to count the amount. Therefore one Satish has

counted the same and the hands of the accused were washed with

the sodium solution which was turned into pink. The panchanama

was drawn as per the Ex.P.2 which is also not in dispute. The

Ex.P.1 further deposed he went to the office of the accused where

the complainant has to pay the money then he said he do not have

Rs.2,000/- and paid only Rs.1,000/-. Though he has given

Rs.1,000/- for that the accused said to have told it is not a

vegetable business and gave it to the accused and the accused

received it and kept it in the right side pant pocket and thereafter

he also demanded further Rs.1,000/-. Therefore, he has given

Rs.500/- two currency notes. At that time one Sheristedar came

and kept the amount in the file. Subsequently, he has given signal

to the Police, immediately the Police came and arrest the accused.

The Police seized the Rs.100/- notes of 10 in denomination from the

pocket and Rs.500/- notes in the file kept on the table. The hand

washed by the accused was converted into pink color for having

touched the currency notes. In the cross examination, the DW-1

has admitted that there is no agreement between the Gunavanti

and himself for purchasing the trees and also she has given any

power of attorney for filing the application to the authorities for

seeking permission. The corroborative evidence of PWs-1 and 3

shadow witnesses has stated that he and the complainant went to

the office of the accused and he has stood out side the office of the

accused. The complainant went inside the office and spoke to the

accused at 6.30 the complainant gave money to the accused, he

received. Immediately, signal given to the Police by PW-1

complainant, immediately they went and trapped the accused. The

hands of the accused was washed with sodium solution, it was

turned into pink and he has said the amount was kept by the

accused under the file which was kept on the table and further

confirmed the amount was recovered from the table but not said

that the amount was recovered from the pant pocket of the

accused. Likewise PW-4 Investigation Officer stated in the

examination of chief that after the signal given by the PW-1

complainant, he went to the office of the accused and enquired with

the complainant he has stated the amount was received by the

accused was kept under the file. Then his hands washed, it was

turned into pink. He seized the said amount under the panchanama

at Ex.P.3. He also stated in the chief examination the complainant

stated that the accused kept the amount in the right side pocket

and thereafter said that the amount was kept under the file and in

the cross examination the I.O. clearly admitted that the amount

was not recovered from the pant pocket of the accused.

10. On perusal of the records, especially the washing of

hands of the accused with sodium solution which was turned into

pink which suggest the accused accepted the tainted currency notes

from the complainant. However it is needless to say whether the

demand made by the accused and accepted the bribe as required

under the law. Therefore, when the demand and acceptance is not

proved the accused is entitled for acquittal in trap cases.

11. As per the evidence of PW-1 the accused received

Rs.1,000/- consisting of 10 note of Rs.100/- and kept it in his pant

pocket and again the accused asked how much it is for that he said

Rs.1,000/-. Therefore he has demanded further Rs.1,000/-

consisting of two notes of Rs.500/- he received the same and kept

under the file. But the panchanama reveals both Rs.100/- notes

and Rs.500/- notes kept under the file where as the I.O. stated no

money was recovered from the pant pocket of the accused, but it

was taken out from the file. Wherein the PW-1 complainant stated

that he kept Rs.1,000/- in his pant pocket and another Rs.1,000/-

under the file. There is contradiction in the evidence of PWs-1, 3

and 4. Therefore the recovery of the amount is not satisfactorily

proved by the prosecution in respect of acceptance of bribe money

by the accused, as already stated above mere acceptance is not an

offence until it is proved that there was demand acceptance. The

demand was not properly proved by the prosecution and not stated

by the PW-1 and that the currency notes given to the accused by

the complainant on demand. That apart, the I.O. not at all seized

any power of attorney of the PW-1 or any agreement between the

Gunavanti and PW-1. Except four witnesses no other witnesses

were examined. Therefore, as held by the Hon'ble Supreme Court

in corruption cases the demand and acceptance are sinequanone

For proving the quilt. But the demand was not satisfactorily proved

by the prosecution against the accused. That apart it is admitted

that the son of the complainant was the press reporter and he was

taken the photographs and published in the new papers. It is also

admitted fact that he was in habit of filing the complaint against the

government officials and he filed the complaint against the accused

in Police Station. Therefore, contention of the prosecution that the

accused demanded and accepted the bribe amount of Rs.2,000/-

proved beyond all reasonable doubts is not correct.

12. The Trial Court after considering all these contradictions

and appreciated the evidence on record and rightly came to the

conclusion that the prosecution failed to proved the charges against

the accused. Beyond all reasonable doubts and hence rightly

acquitted the accused.

13. Therefore on perusal of the entire evidence as recorded,

I am of the view that the judgment of acquittal passed by the Trial

Court is based on the sound reason and appreciation of evidence

which does not required to interfere by this Court, in the appellate

jurisdiction. Therefore, the judgment of acquittal did not call for

any interfere by this Court.

14. Accordingly, the appeal filed by the appellant is

dismissed.

Sd/-

JUDGE

SMM