Nagappa Bhimappa Borgalli vs The State Of Karnataka
2022 Latest Caselaw 8153 Kant

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                                       CRL.A No. 2616 of 2012


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 6TH DAY OF JUNE, 2022

                              BEFORE
       THE HON'BLE MR JUSTICE V.SRISHANANDA
        CRIMINAL APPEAL NO. 2616 OF 2012 (C-)
BETWEEN:

    NAGAPPA BHIMAPPA BORGALLI
    AGE: 53 YEARS, OCC: VILLAGE ACCOUNTANT. R/O.
    SANKESHWAR, TQ: HUKKERI, DIST: BELGAUM.

                                                   ...APPELLANT

(BY SRI.ABHISHEK PATIL, ADVOCATE)

AND:

    THE STATE OF KARNATAKA
    THROUGH P.S.I. KARNATAKA LOKAYUKTA BELGAUM.
    REPTED. BY S.P.P. OFFICE, CIRCUIT BENCH, DHARWAD.

                                                ...RESPONDENT

(BY SRI.ANIL KALE, SPL. PP)

       THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING THAT THE ORDER OF CONVICTION AND SENTENCE DATED
07.03.2012 PASSED BY THE IV-ADDL. DIST. JUDGE & SPL. JUDGE,
BELGAUM, IN SPL.CASE NO.29/2009 CONVICTING THE APPELLANT
FOR THE OFFENCES P/U/S 7, 13(1)(d) R/W SEC. 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988 BE SET ASIDE AND THE
APPELLANT BE ACQUITTED OF ALL THE OFFENCES LEVELED
AGAINST HIM AND FINE AMOUNT BE ORDERED TO BE RETURNED TO
THE APPELLANT, BY ALLOWING THIS APPEAL.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                       CRL.A No. 2616 of 2012


                         JUDGMENT

1. Heard Sri.Abhishek Patil, learned counsel for

the appellant and Sri.Anil Kale, learned Special P.P. for the

respondent.

2. This appeal is filed by the convicted accused

challenging the validity of the judgement passed in Special

Case No.29/2009 on the file of the IV Additional District

and Sessions and Special Judge (PCA), Belagavi.

3. Brief facts of the case are as under:

3.1 Complainant by name Masuba Dundappa

Shekhanavar approached the accused in respect of

transfer of his name along with his brothers in the revenue

records after his father died in respect of Sy.No.152 and

155 of Gotur village in October-2007.

3.2 Complainant filed an application with the Taluka

Office on 10.12.2007. The said application was sent to the

accused-appellant on 17.12.2007. Appellant issued notice

calling for objections and at that juncture the complainant

CRL.A No. 2616 of 2012

approached the accused, and accused demanded

Rs.1,500/- as illegal gratification besides receipt of

Rs.1,000/- towards Government fee. The complainant was

not interested in parting away with the said amount of

Rs.1,500/- as illegal gratification, but handed over

Rs.1,000/- towards Government fee to the accused and

then approached the Lokayukta police with a written

complaint.

3.3 The head of the raid party being convinced

about the contents of the complaint, arranged for the trap.

The complaint was lodged on 03.01.2008. Thereafter,

head of the raid party secured two panch witnesses who

are government servants and explained them the contents

of the complaint and also about modalities of the intended

trap. He demonstrated chemical reaction of

phenophthalein powder with carbon solution, he took

Rs.1,500/- from the custody of the appellant comprising

denomination of five notes of Rs.100/- and smeared

phenophthalein powder on to the said currency notes and

CRL.A No. 2616 of 2012

also noted the serial number of those currency notes and

drafted experimental mahazar. The complainant and

shadow witnesses were directed to approach the accused

and on demand to hand over the tainted currency to the

hands of the accused. Accordingly, raid party left and

stopped their jeep little away from the place of incident

and complainant and shadow witness went inside the

house of the accused.

3.4 Thereafter, the complainant approached the

accused and enquired about his pending application and

on demand handed over Rs.1,500/- the tainted currency

which was kept in his shirt pocket. Thereafter, the

complainant came out side and gave pre-designated signal

to the rest of the raid party. Immediately, all the members

of the raid party entered the house of the accused and

enquired about the tainted currency. Accused took out the

tainted currency from his shirt pocket and kept on the mat

where he was sitting and the same was verified by the

mahazar witnesses. The serial numbers of the tainted

CRL.A No. 2616 of 2012

currency tallied with serial numbers entered in the

entrustment mahazar and thereafter colour test was

conducted, colour test stood positive. No proper

explanation was offered by the accused for having tainted

currency and therefore, accused was arrested. Thereafter,

all these proceedings were reduced into writing in the form

of trap mahazar and thereafter raid party returned to the

police station and accused was produced before the

Special court. Subsequent thereto, police conducted

detailed investigation and filed charge sheet against the

accused.

3.5 Presence of accused was secured before the

Special Court and after taking cognizance and charge was

framed against the accused. The accused denied the

charges levelled against him for the offence punishable

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

such, trial was held.

3.6 In order establish the case of the prosecution,

in all examined 7 witnesses comprising of complainant,

CRL.A No. 2616 of 2012

two mahazar witnesses, one official superior, sanctioning

authority and head of the raid party as PWs.1 to 7 and 23

documents were relied on by the prosecution which were

exhibited and marked as Exs.P.1 to P.23. Then the

material objects were also marked as MOs.1 to 9 by the

prosecution. Defence no doubt in the cross-examination of

PW.4 elicited a contradiction which was marked by the trial

Judge as Ex.D.1.

3.7 On conclusion of the prosecution evidence,

accused statement under Section 313 of Cr.P.C. was

recorded, accused has denied all the incriminatory

materials and has submitted his written submissions as

contemplated under Section 313(5) of Cr.P.C. The said

written submission reads as under:

"DgÉÆæAiÀÄ °TvÀ ºÉýPÉ PÀ®A 313, ¹.Dgï.¦.¹. CrAiÀÄ°è

£Á£ÀÄ 2007 gÀ°è UÉÆÃlÄgÀ UÁæªÄÀ zÀ UÁæªÄÀ ¯ÉPÁÌ¢üPÁj CAvÁ PÉ®¸À ¤ªÀð»¸ÀÄwÛzÉÝãÀÄ. F PÉù£À ¦AiÀiÁ𢠪ÀĸÉÆèÁ ±ÉÃR£ÀªÀgÀ EªÀgÀ ªÁgÀ¸Á ¸ÀA¨sÀA¢ü Cfð 10/12/2007 gÀAzÀÄ vÀºÀ²Ã¯ÁÝgÀ PÀbÉÃj ºÀÄPÉÌÃjAiÀÄ°è qÉÊj £ÀA.31 gÀ°è £ÀªÄÀ Æ£É £ÀA.21 gÀ°è £À£ÀUÉ 17/12/2007 gÀ £ÀAvÀgÀ PÀ¼ÀÄ»¹zÀÄÝ EvÀÄÛ.

CRL.A No. 2616 of 2012

¸ÀzÀj CfðAiÀÄ£ÀÄß £Á£ÀÄ ¥Àj²Ã°¹ PÀ§Æ° ¥ÀvæÀ ¸À°è¹zÀªÀjUÉ £ÉÆÃn¸À PÉÆlÄÖ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ 30 ¢ªÀ¸ÀUÀ¼À°è vÀPÀgÁgÀÄUÀ½zÀÝgÉ £À£ßÀ D¦Ã¹UÉ ¸À°è¸À®Ä w½¸À¯ÁVvÀÄÛ. F qÀåjUÉ ¸ÀA¨sÀA¢ü¹zÀAvÉ ¸ÀgÀPÁgÀPÌÉ ¸À°¸À¨ÉÃPÁzÀ ºÀtªÀ£ÄÀ ß ¨sÀgÀt ªÀiÁrgÀ°®è D PÁgÀt £Á£ÀÄ ¦AiÀiÁð¢UÉ ªÁgÀ¸Á qÉÊj PÀ§Æ° ¥ÀvæÀ DzÀj¹zÀ ¥ÀæPÀgÀtPÉÌ gÀÆ.1,000/- ¸ÀgÀPÁj ¦üà ZÀ®£À ªÀÄÆSÁAvÀgÀ vÀÄA§®Ä w½¹zÉÝãÀÄ.

¦AiÀiÁð¢ F ¥ÀæPÀgÀtPÉÌ ¸ÀA¨sÀA¢¹zÀAvÉ £À£ÀUÉ ªÉÆzÀ®Ä gÀÆ.1,000/- ¦üà ¸À®ÄªÁV PÉÆnÖzÝÉ Ã£ÀÄ. £ÀAvÀgÀ £Á£ÀÄ gÀÆ.1,500/- ®AZÀzÀ gÀÆ¥ÀzÀ°è PÉýzÁÝV ¸ÀļÀÄî D¥ÁzÀ£É ªÀiÁrgÀÄvÁÛ£É. 10/12/2007 gÀ Cfð £À£Àß ºÀvÀÛgÀ 17/12/2007 gÀAzÀÄ §A¢zÀÄÝ CzÀPÌÉ PÁ®ªÀPÁ±À 30 ¢£À EzÁÝUÀÆå CAzÀgÉà 17/01/2008 ªÀgÉUÉ EzÀÄÝ £ÀAvÀgÀ ¸ÀgÀPÁj ¦ü ¨sÀgÀt ªÀiÁrzÀ £ÀAvÀgÀ qÉÊj ªÀÄAdÆj ¥ÀqÉAiÀÄ®Ä PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ PÁ¯ÁªÀPÁ±À EvÀÄÛ. DzÀgÉ ¦AiÀiÁð¢ 3/01/2008 gÀAzÀÄ £À£ßÀ ªÉÄÃ¯É SÉÆÃnÖ ¦AiÀiÁ𢠸À°è¹zÀÄÝ EgÀÄvÀÛzÉ.

WÀl£ÉAiÀÄ ¢£À £À£ßÀ ºÀwÛgÀ §AzÁUÀ £ÉÆÃn¸À PÉÆnÖzÄÀ Ý vÀPÀgÁgÀÄ K£ÁzÀgÀÆ §AzÀgÉ £ÉÆÃr qÉÊj ªÀÄAdÆgÉ ¥ÀqÉAiÀÄĪÀzÁV ºÉý ¸ÀgÀPÁj ¦üà ¨sÀgÀt ªÀiÁqÀ®Ä w½¹zÉãÀÄ DPÁ®PÉÌ ¦AiÀiÁð¢ ZÁ¥ÉAiÀÄ ªÉÄÃ¯É £À£ßÀ ªÀÄÄAzÉ ºÀtªÀ£ÀÄß ElÄÖ £À£ßÀ ªÉÄÃ¯É ®AZÀ PÉýzÀÄzÁV ¸ÀļÀÄî D¥ÁzÀ£É ªÀiÁr £À£ÀߣÀÄß F PÉù£À°è DgÉÆævÀ£À£ÁßV ªÀiÁrzÀÄÝ £Á£ÀÄ AiÀiÁªÀ PÁ®PÀÆÌ ®AZÀ PÉý®è, ¥ÀqÉ¢¯Áè PÁgÀt £Á£ÀÄ ¤gÀ¥ÀgÁ¢ü EzÀÄÝ ©ÃqÀÄUÀqÉ UÉƽ¸À¨ÉÃPÉAzÀÄ «£ÀAw¹PÉƼÀÄîvÛÉãÉ."

3.8 Thereafter, the learned trial Judge heard the

parties in detail and after appreciating the material

evidence on record convicted the accused for the aforesaid

CRL.A No. 2616 of 2012

offences and passed an order of conviction and sentence

as under:

"The accused is found guilty of the offences U/s 7 and 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 and he is convicted U/s 235(2) of Cr.p.C.

The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5000/-, in default simple imprisonment for a further period of two months for the offence punishable U/s 7 of the Prevention of Corruption Act, 1988.

The accused is further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- in default simple imprisonment for a further period of three months for the offence punishable U/s 13(1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988.

Both the sentences shall run concurrenty.

The period of detention of accused in judicial custody, if any is set off against the sentences imposed against him U/s 428 of Cr.P.C."

4. It is that judgement which is under challenge

before this Court.

5. Reiterating the grounds raised in the petition,

Sri.Abhishek Patil, learned counsel for the appellant

CRL.A No. 2616 of 2012

contended that the case of the prosecution is suffering

from want of proper and cogent evidence on record. He

also contended that the material evidence on record is

hardly sufficient to record an order of conviction against

the accused herein inasmuch as there are many

contradictions found in the case of the prosecution itself

which has been totally ignored by the trial Judge in the

impugned judgment.

6. He also pointed out that the application filed by

the complainant was not accompanied with fee of

Rs.1,000/- payable to the Government and therefore, the

accused was not bound to process the application at all

and the same was intimated to the complainant and at

that juncture the complainant kept Rs.1,500/- on the mat

where the accused was sitting and a motivated trap has

taken place.

7. He also argued that since accused had time to

process the application for a period of 30 days he was not

obliged to process the application till 17.01.2008 and

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CRL.A No. 2616 of 2012

hurriedly on 03.01.2008 the trap came to be laid in order

to somehow falsely implicate the appellant in the case and

thus, sought for allowing the appeal.

8. Sri.Anil Kale, learned counsel representing

Lokayukta vehemently contended that in the case on

hand, the prosecution is successful in trapping all the

ingredients as is held in the case of A.Subair v. State of

Kerala reported in (2009) 6 Supreme Court Cases

587 inasmuch as the complainant and shadow witness has

supported the case of the prosecution by categorically

deposing about the demand and acceptance of the illegal

gratification for doing the work of the complainant, and it

is being pending with the appellant herein.

9. He also contended that the contradictions that

are pointed out by the appellant are natural in view of the

fact that the prosecution witnesses are natural witnesses

and not tutored witnesses and the alleged contradictions

did not give any serious dent to the case of the

prosecution and thus, sought for dismissal of the appeal.

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CRL.A No. 2616 of 2012

10. In the light of the rival contentions, this Court

perused the material on record meticulously. On such

perusal of the material on record, following points would

arise for consideration:

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

(2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?

(3) Whether the sentence is excessive?

11. In the case on hand, the complainant is

examined as PW1. He deposed before the Court by

reiterating the contents of the said

experimental/entrustment mahazar, trap mahazar. He

categorically deposed that he had filed an application with

the revenue office on 07.10.2007 and the same has

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CRL.A No. 2616 of 2012

reached the accused on 17.12.2007. He further deposed

that after the death of his father, himself and his two

brothers wanted that revenue entries be transferred jointly

in their names and therefore, he had approached the

accused. Accused issued notice calling for objections, if

any and in pursuance thereof, he had met the accused. He

further deposed that accused made a demand of

Rs.1,000/- for the government fee and also Rs.1,500/- as

illegal gratification for processing the application. He

deposed that he had handed over Rs.1,000/- towards the

Government fee, but he was not interested in parting

away of Rs.1,500/- as illegal gratification and therefore, he

approached the Lokayukta Police and gave compliant vide

Ex.P1.

12. In his cross-examination, it is elicited that he is

a B.A. graduate and he did not enquire as to what are the

procedures that are required to file an application seeking

mutation of the entries in revenue records. He also

deposed that in October 2007 itself he had met the

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CRL.A No. 2616 of 2012

accused, but he is not sure about the date. It is further

elicited that in December 2007, he had visited house of

the accused and enquired about pending application. At

that juncture, accused has told that Rs.1,000/- which has

been received by him has been spent for the work and

demanded Rs.1,500/- as illegal gratification. It is also

elicited that the complainant has worked as a contract

employee in Belagavi City Corporation and he has been

deputed to Revenue Department. It is further answered

that accused was sitting facing north direction on a mat.

He also answered that Maruthi was sitting on a chair which

was adjacent to the accused. He has further answered that

after seeing the register, he has handed over the tainted

money to the hands of the accused. He has also answered

that colour test was conducted before seizure of tainted

currency. The other suggestions made to him that he had

filed a false complaint and in pursuance thereof motivated

trap has been laid is denied by him.

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CRL.A No. 2616 of 2012

13. PW2 is the shadow witness who supported the

case of the prosecution in toto by deposing the contents of

experimental mahazar and trap mahazar. In his cross-

examination also even though several suggestions are

made, no useful material is elicited so as to disbelieve the

case of the prosecution. He has specifically answered that

there was no conversation between the accused and the

complainant with regard to the amount to be paid to the

government. He specifically answered in cross-

examination about the bribe money of Rs.1,500/- being

demanded by the accused and complainant handing over

tainted currency to the hands of the accused.

14. PW3 is an employee from Survey Department;

he is a co-panch. He deposed about entrustment mahazar

and after pre-designated signal entering into the house of

the accused and witnessing the trap of the accused tainted

money being seized, it is being verified with the contents

of entrustment mahazar, arrest of the accused. In his

cross-examination also though several suggestions are

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CRL.A No. 2616 of 2012

made to discredit the testimony of PW3, the defence is

unsuccessful in discrediting the credibility of PW3.

15. PW4 is the PWD Engineer, who prepared spot

sketch vide Ex.P20. His evidence is formal in nature as

there is no much dispute as to the place of incident.

16. PW5 is Revenue Inspector, who deposed about

the procedure involved. He also deposed as to the

application being sent to the accused on 17.12.2007. The

answer is obtained in cross-examination to the effect that

on verifying the application, it is found that the date of the

application is 10.12.2007 and the same has been reached

the accused on 17.12.2007.

17. Dr.Ravishankar is the official superior of the

accused who issued the sanction order to prosecute the

accused. His evidence is not discredited by detailed cross-

examination nor any serious lacuna is pointed out in the

sanction order. Head of the raid party is examined as PW7.

He deposed about the complainant visiting the office of the

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CRL.A No. 2616 of 2012

Lokayukta on 03.01.2008 and lodging the complaint vide

Ex.P1. He further deposed about convincing himself about

the contents of Ex.P1 securing panch witnesses

demonstrating the chemical reaction of phenolphthalein

powder with sodium solution receiving Rs.1,500/- currency

comprising of one currency note of one thousand rupees

denomination five currency notes of one hundred rupees

denomination entering the serial numbers of those

currency notes smearing phenolphthalein powder to the

currency notes and then demonstrating the chemical

reaction of sodium carbonate solution with phenolphthalein

powder drafting of entrustment mahazar instructing the

complainant and the shadow witness to visit the house of

the accused and on demand to handover the tainted

currency to the accused and give the pre-designated

signal to the rest of the raid party, actual trap being taken

place arrest of the accused investigation being conducted

and filing of charge sheet. In his cross-examination also no

useful material is elicited so as to record a finding that

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CRL.A No. 2616 of 2012

PW7 had ill-motivation to file a false charge sheet against

the accused.

18. During the course of cross-examination of PW4,

a contradiction is elicited which is marked as Ex.D1, which

reads as under:

"£Á£ÀÄ GªÉÄñÀ UÀt¥ÀvÀgÁªÀ ZÀªÁ£À. ªÀAiÀĸÀÄì: 48 ªÀµÀð eÁw: »AzÀÄ GzÉÆåÃUÀ: ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ, ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀ PÀbÉÃj, ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉ, ºÀÄPÉÌÃj, f¯Áè: ¨É¼ÀUÁ« ºÉý §gɬĹzÀÄÝ.

£À£ÀUÉ ¢£ÁAPÀ 08.01.2008 gÀAzÀÄ vÀªÀÄä PÀbÉÃjAiÀÄ ¥ÀvÀæzÀ ¥ÀæPÁgÀ £À£ÀUÉ £ÀªÀÄä ªÉÄïÁ¢üPÁjUÀ¼ÁzÀ ¸ÀºÁAiÀÄPÀ PÁAiÀÄ𠤪ÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ, ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉ, ºÀÄPÉÌÃj, f¯Éè: ¨É¼ÀUÁ«gÀªÀgÀÄ ¨É¼ÀUÁ« ¯ÉÆÃPÁAiÀÄÄPÀÛ oÁuÉAiÀÄ C¥ÀgÁzsÀ ¸ÀASÉå 01/2008 gÀ°è WÀl£Á ¸ÀܼÀªÁzÀ ±ÀAPÉñÀégÀ ±ÀºÀgÀzÀ ¸À¸ÀÄA¢ UÀ°èAiÀÄ°ègÀĪÀ D¥Á¢vÀgÀ ¨sÁ¢UÉ ªÀÄ£ÉAiÀÄ £ÀPÉëAiÀÄ£ÀÄß vÉUÉAiÀÄ®Ä £ÉëĹzÀÝgÀÄ. ¢£ÁAPÀ 15.07.2008 gÀAzÀÄ ¥ÉÆðøÀ E£Àì¥ÉÃPÀÖgÀ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¨É¼ÀUÁ« gÀªÀgÀÄ £À£ÀUÉ zÀÆgÀªÁt ªÀÄÄSÁAvÀgÀ ¸ÀA¥ÀQð¹ vÀªÀÄä oÁuÉAiÀÄ ¹§âA¢ ªÀÄvÀÄÛ ¥ÀAZÀ £ÀA.1 gÀªÀjUÉ PÀ¼ÀÄ»¸ÀĪÀ §UÉÎ w½¹ UÀÄ£Éß ¸ÀܼÀzÀ £ÀPÁ±ÉAiÀÄ£ÀÄß vÀUɬĹPÉÆqÀ®Ä w½¹zÀ ªÉÄÃgÉUÉ ¢£ÁAPÀ: 15.07.2008 gÀAzÀÄ ¯ÉÆÃPÁAiÀÄÄPÀÛ oÁuÉAiÀÄ ¹§âA¢ ²æÃ. ©.J¸ï. ¥ÀÆeÁj ¹JZï.¹ ªÀÄvÀÄÛ ¥ÀAZÀ £ÀA.1 gÁzÀ ²æà §¸ÀªÀgÁd gÁªÀÄ¥Áà ºÀħâ½PÀgÀ EªÀgÀÄ §A¢zÀÄÝ CªÀgÀÄ ¥ÀAZÀ£ÁªÉÄ ¥ÀæPÁgÀ vÉÆÃj¹zÀ UÀÄ£Éß ¸ÀܼÀzÀ n¥ÀàuÉ ªÀiÁr £ÀPÁ±ÉAiÀÄ£ÀÄß vÀAiÀiÁj¹

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CRL.A No. 2616 of 2012

F ¢ªÀ¸À PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ PÀbÉÃj, ¨É¼ÀUÁ«UÉ §AzÀÄ ¥ÉưøÀ E£Àì¥ÉÃPÀÖgÀ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ gÀªÀjUÉ ¨sÉÃnÖAiÀiÁV ¸ÀzÀj £ÀPÁ±ÉAiÀÄ£ÀÄß PÉÆnÖgÀÄvÉÛãÉ.

£À£Àß ¸ÀªÀÄPÀëªÀÄ N.ºÉ.PÉ. ¸Àj EzÉ.

¥ÉÆðøÀ E£Àì¥ÉÃPÀÖgÀ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ, ¨É¼ÀUÁ«"

19. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant in

the light of appeal grounds referred to supra.

20. This Court meticulously considered rival

contentions of the parties and perused the material on

record meticulously. It is the specific case of the

complainant that he had filed an application for transfer of

revenue entries into his name along with his brothers after

demise of his father. There is no dispute about the

application being pending in the office of the Tahsildar vide

Ex.P9. It is elicited in the cross-examination that Ex.P9 is

dated 10.12.2007, but it has reached the accused only on

17.12.2007. The trap being successful, colour test being

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CRL.A No. 2616 of 2012

positive, it is the defence of the accused that he had 30

days time to process the application and therefore the trap

conducted on 03.01.2008 is motivated. It is also the

contention of the accused-appellant that Rs.1,000/- fee is

to be paid to the Government and the application did not

accompany Rs.1,000/- and the same was brought to the

notice of the complainant and at that juncture, the money

was kept on the mat where the accused was sitting in his

house and a trap has been conducted. If that contention is

to be accepted, how the colour test stood positive is a

question that remains unanswered by the accused. No

whisper is made out in the written submissions filed by the

accused under Section 313(5) Cr.P.C. about the colour

test. So also no explanation is forthcoming either in the

form of suggestions to the prosecution witnesses or

otherwise that colour test itself was a fake test. Under

such circumstances, it is successfully established by the

prosecution that the accused handled the tainted currency.

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CRL.A No. 2616 of 2012

21. On the contrary, the prosecution witnesses

namely PWs.1 and 2 specifically deposed that after the

complainant approached the accused on 03.01.2008 in his

house, accused demanded Rs.1,500/- as illegal

gratification and at that juncture, the complainant handed

over the tainted currency to the hands of accused and

accused kept the same in shirt pocket and only on demand

by the trap party, he took out the currency notes from his

pocket and kept on the mat. Therefore, handling of tainted

currency by the accused is successfully established by the

prosecution. Further since the colour test stood positive,

other evidence led by the prosecution witnesses especially

the complainant that in regard to processing the

application vide Ex.P9, accused demanded Rs.1,000/-

towards the Government fee and which he handed over

and Rs.1,500/- as illegal gratification which he was not

interested to handover. It is pertinent to note that what

was handled by the accused is Rs.1,500/- and not

Rs.1,000/-. Therefore, the contention taken by the

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accused in the form of written submission referred to

supra that complainant kept the money on the mat which

was towards the Government fee cannot be countenanced

in law.

22. Further, the question of non-payment of the

government fee and therefore accused was not duty bound

to process the application cannot be countenanced in law

inasmuch as in his written submission itself, he has stated

that he had issued the notices to the concerned and also

called for objections from the general public by processing

the application. Had the defence of the accused is to be

accepted, the only course that was left for the accused

was to return the application to the main office by making

necessary entries in the inward and outward register while

processing it. Having processed the application, and called

for the objections, the say of the accused that the

application was defective cannot be countenanced in law.

Further, the processing of the application also fortifies the

stand and the oral testimony of PW1 that he had handed

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over Rs.1,000/- towards the Government fee, but he was

not interested in parting away with the illegal gratification.

23. The last contention that is taken by the accused

is that 30 days time was there for the accused to process

the application and without waiting for 17.01.2008;

complainant trapped the accused with ulterior motive.

24. What is the previous enmity or animosity

between the complainant and accused which could be

termed as an ulterior motive is not forthcoming on record.

None of the prosecution witnesses including the

complainant did not nurture any such previous enmity or

animosity. Under such circumstances, why complainant,

PW2 who is a shadow witness and a government employee

and PW7 who is the head of the raid party, PW3 who is a

co-panch would depose against the accused only with an

intention to get a false conviction against him is a question

that remains unanswered. When all these aspects of the

matter is viewed cumulatively, this Court is of the

considered opinion that prosecution has successfully

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established all ingredients to attract the offence

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

Section 13(2) of the P.C. Act. Accordingly, Point No.1 is

answered in the affirmative. On re-appreciation of the

material on record and perusal of the impugned judgment,

except minute corroborations, which are natural, the

impugned judgment is not suffering from any grave

illegality or perversity and therefore, Point No.1 is

answered in Affirmative and Point No.2 is answered in the

Negative.

25. Regarding Point No.3 :- The learned Trial

Judge has convicted the accused and passed an order of

sentence as referred to supra. Learned counsel for the

appellant Sri Abhishek Patil contended that soonafter the

trap, accused has been discharged from the service and

therefore, the sentence ordered by the trial Court is acting

harsh to the accused.

26. The only consequence after the trap is that the

suspension and subsequently holding disciplinary enquiry.

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In the case of accused, he has been discharged after

following all such necessary requirements, and it is a

natural consequence that when a person is trapped

especially with the corruption charges. Therefore, the

same cannot be treated as a mitigating circumstance so as

to interfere with the just sentence passed by the learned

trial Judge. Accordingly, no case is made out to reduce the

sentence either. Therefore, Point No.3 is answered in the

negative and following order is passed.

ORDER

The appeal is dismissed.

Time is granted for the appellant to surrender before the Trial Court till 30.06.2022.

Office is directed to return the Trial Court records with the copy of this order forthwith.

SD/-

JUDGE

SH upto para 9 CLK