Karnataka High Court
Shivakumar vs State Of Karnataka on 7 June, 2022
Bench: S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.848/2011
BETWEEN:
SHIVAKUMAR,
S/O LAKSHMAIAH,
AGED ABOUT 28 YEARS,
SECOND DIVISION ASSISTANT,
JUNIOR ASSISTANT LABOUR,
DEPARTMENT,
SECRETRIAT -2,
M.S. BUILDING,
BANGALORE,
R/AT 2ND CROSS,
MATADAHALLI,
BANGALORE.
... APPELLANT
(BY SRI M. SHARASS CHANDRA, ADVOCATE)
AND:
STATE OF KARNATAKA BY
LOKAYUKTA POLICE,
(REP BY SPL. PUBLIC PROSECUTOR)
... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPL.PP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED:01.08.2011 PASSED BY THE SPL.JUDGE,
PREVENTION OF CORRUPTION ACT. BANGALORE URBAN
DIST., BANGALORE CITY IN SPL. C.C.NO.55/05 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 OF PREVENTION OF
CORRUPTION ACT AND SEC. 13(1)(D) PUNISHABLE UNDER
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
R.J. FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 OF PREVENTIONN OF
CORRUPTION ACT AND TO PAY A FINE OF RS.500/- (RUPEES
FIVE HUNDRED) IN DEFAULT TO UNDERGO S.I. FOR 15
DAYS AND THE APPELLANT/ACCUSED IS FURTHER
SENTENCED TO UNDERGO R.I. FOR A TERM OF ONE YEAR
FOR THE OFFENCE DEFINED UNDER SECTION 13(1)(D)
WHICH IS PUNISHABLE UNDER SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT AND TO PAY FINE OF
RS.600/- (RUPEES SIX HUNDRED) IN DEFAULT TO UNDERGO
S.I. FOR 20 DAYS. THE SUBSTANTIVE SENTENCES OF
IMPRISONMENT SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 08.04.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
3
JUDGMENT
The appellant / accused has preferred this appeal
against the conviction passed by learned Special Judge,
Prevention of Corruption Act, Bengaluru Urban District,
Bengaluru City in Spl.C.C.No.55/2005 dated 01.08.2011.
2. Brief facts of the case are as follows:-
The accused was working as SDA at Labour
Department, situated at M.S.Building, Bengaluru. The
complainant was working as Conductor in KSRTC in the
year 1994 and he was also a representative of AITUC.
Since he was representing the Union, the Corporation
allegedly dismissed him from service. He challenged the
said dismissal order before the Labour Court at
Bengaluru. In the year 2000, the order of dismissal was
set-aside by the Labour Court and directed the
Corporation to reinstate him with backwages and
directed the State Government to notify the award. On
02.07.2004, the complainant approached the accused
Shivakumar and C.Raju, both have demanded a bribe in
a sum of Rs.200/- each for notifying the court order.
Since the complainant was not willing to pay the said
amount, he has chosen to lodge the complaint before
the Lokayukta. Accordingly, he has lodged the complaint
before the Lokayukta on 05.07.2004. On registration of
the FIR for the offence punishable under sections 7,
13(1)(d) and 13(2) of the Prevention of Corruption Act.
The Investigating Officer after completion of the
investigation, submitted the chargesheet against the
accused Shivakumar. In the chargesheet, it is alleged
that the accused being a public servant, while working
as a SDA in Labour Department, has demanded and
accepted illegal gratification of Rs.200/- from the
complainant in connection with the notification of the
award passed by the Labour Court.
3. The Special Court read over the charges
framed against the accused for the offences punishable
under sections 7, 13(1)(d) and 13(2) of the Prevention
of Corruption Act in the language known to the accused
and explained the consequences of the charges. The
accused pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution,
the prosecution examined eight witnesses i.e., PW.1 to
PW.8 and got marked Ex.P1 to Ex.P26 and also
identified the material objects M.O.1 to M.O.16.
5. The trial Court after considering the oral and
documentary evidence, has opined that the accused has
committed the said offences and convicted him for the
above said offences.
6. Being aggrieved by the said conviction, the
appellant / accused has preferred this appeal, seeking to
set-aside the impugned judgment.
7. Heard learned counsel for the respective
parties of the case.
8. Sri.M.Sharasschandra, learned counsel for
the appellant, has contended that the accused was
working as SDA in Labour Department. He was honest,
sincere and dedicated towards his official duties. On
05.07.2005, when he was in the office, the complainant
has entered the chamber of the appellant and forcibly
put the currency notes to his pant pocket and requested
to keep the same. By that time, the repondent - Police
conducted a raid and seized the said currency notes,
with an intention to cause harm to his reputation.
9. Learned counsel for the appellant further
submits that the evidence of PW.2 and PW.3 clearly
discloses that the work of the complainant and the file
alleged to have kept in the custody of the appellant was
not there and the work of the Compalainant was not
there with the Appellant. Further, PW.2 and PW.3 have
deposed that, prior to conducting of the raid, the said
file was proceeded before the Labour Commissioner for
necessary compliance. Hence, the question of keeping
the file by demanding bribe would not arise at all. He
further submits that, the appellant was falsely implicated
even though no work was pending and no demand was
made by the appellant. Hence, he sought to allow the
appeal.
10. Per contra, Sri.Venkatesh S.Arabatti, learned
Spl.Public Prosecutor for Lokayukta, while justifying the
order of conviction, has vehemently contended that,
though PW.1 has got order from the Labour Court, the
accused / appellant deliberately in order to have illegal
gratification from the complainant, has with held the file
and not put up the same for further adjudication. Being
fed up with the illegal demand by the appellant, the
complainant has lodged the complaint with the
Lokayukta Police.
11. Learned Spl.PP further submits that PW.1 is
the complainant who has supported the case of the
prosecution and narrated the incident. The same has
been supported by PW.2 and PW.3 who are the shadow
witnesses to the incident and all other official witnesses
have consistent in their evidence with regard to seizure
of the currency notes from the accused, washing of
hands in order to show that he has received the bribe
money from the complainant. Hence, he submits that
prosecution has proved the case of demand and
acceptance which is sine-quo-non to establish the
corruption. Such being the fact, he justified the
judgment of the trial Court and prayed for dismissal of
the appeal.
12. Having heard the rival contention of the
learned counsel for the respective parties and after
having gone through the evidence on record, the points
which arise for my consideration are:-
(i) Whether the trial Court is justified in
convicting the accused for the offences
punishable under sections 7, 13(1)(d) and
13(2) of the Prevention of Corruption Act?
(ii) Whether the appellant has made out ground
to interfere with the impugned judgment?
13. This Court being the first Appellate Court, in
order to re-appreciate the evidence on record, is
required to analyse the evidence of all the witnesses to
arrive at a conclusion.
(a) PW.1 - M.Ramu - complainant states that, he
was working as a Conductor in KSRTC,
Bengaluru. He was removed by the
Corporation since he was a member in
AITUC. He challenged the said dismissal
order before the Labour Court, Bengaluru in
Ref.Nos.15/1999 and 5/2000. The Labour
Court directed the Corporation to reinstate
him with backwages. He approached the
Labour Department for notification in the
Gazette. There was a delay in publishing the
notification. He approached the accused and
C.Raju. Both have demanded bribe of
Rs.200/- each. Though he requested accused
and his friend that he did not have money,
they have not heeded to his words. Having
fed up with the act of accused and his friend,
he has lodged the complaint before the
Lokayukta Police on 05.07.2004. The
complaint is marked as Ex.P1. He is also a
witness to Ex.P2 wherein the serial number of
currency notes were noted. He is also a
witness to Ex.P3 - panchanama. This
panchanama pertains to entrustment of
money by the Lokayukta Police to the
complainant. He has supported the case of
the prosecution.
(b) PW.2 - U.Manjunath - is a shadow witness.
He was working as SDA in Sericulture
Department, located at M.S.Building,
Bengaluru. He has supported the case.
However, denied the handing over of tape-
recorder to the complainant and the
conversation said to have been heard by him.
Though the prosecution treated him as partly
hostile and cross-examined him on the point,
nothing has been elicited in the cross-
examination.
(c) PW.3 - M.V.Rangaraju - is also a shadow
witness. He was working as SDA in Transport
Commissioner's Office, located in
M.S.Building, Bengaluru. He has also partly
supported the case of the prosecution.
(d) PW.4 - A.N.Rajanna - was working as
Dy.S.P., at Lokayukta Office, Bengaluru. He
stated that he has received complaint from
the complainant, which is already marked as
Ex.P1, after registering the FIR, the
investigation was handed over to I.O. for
necessary compliance. He has supported the
case of the prosecution.
(e) PW.5 - G.V.Kongawad - was working as
Director, DPAR, situated at M.S.Building,
Bengaluru. He stated that he has issued
"sanction" against accused No.1 on the
request made by the I.O. Supported the case
of the prosecution.
(f) PW.6 - M.Raju - was working as SDA in
Labour Department. He stated that, on
05.07.2004, at about 4.00 p.m., when he
was working in his office, a stranger came to
his office and enquired as to whether the file
had been to Commissioner Office or not. He
answered that it had gone to Commissioner
Office and showed the tappal book. As per
the record, on 28.06.2004, the said file had
been to the office of the Labour
Commissioner for necessary action. He has
supported the case of the prosecution.
(g) PW.7 - M.R.Mahesh Kumar - was working as
Section Officer in Labour Department
Secretariat, M.S.Building, Bengaluru. He
stated that he had attested some documents
given by I.O. in connection with the case
pertaining to accused. He has supported the
case of the prosecution.
(h) PW.8 - N.M.Dharmappa - was working as a
Police Inspector, Karnataka Lokayukta, City
Division, Bengaluru. He stated that, on
05.07.2004, he has received case file from
Dy.S.P., and conducted investigation about
the case and submitted chargesheet. He has
supported the case of the prosecution.
14. It is the case of the prosecution that the
complainant had approached the accused and his friend
C.Raju to notify the award passed by the Labour Court.
The Order passed by the Labour Court discloses that,
the direction was issued to reinstate the complainant
with backwages. The complainant further alleged that,
to notify the award, the accused and his friend have
demanded Rs.200/- each. Having been frustrated by
the act of the accused and his friend, he decided to
lodge the complaint with the Lokayukta Police.
Accordingly, on 05.07.2004, he lodged the complaint as
per Ex.P1. PW.2 and PW.3 said to have been working in
the M.S.Building wherein the Labour Department is
situated and these witnesses have been treated as
shadow witnesses and mahazar witnesses with regard to
the alleged incident. These witnesses have supported
the case.
15. PW.2 in his examination-in-chief has stated
that, on request being made by the Investigating Officer
to be a shadow witness to the incident, he acted as
shadow witnesse with prior permission from his highter
officials. He stated that, he has followed the instruction
of the I.O. As per the instruction given, he had
accompanied PW.1 to the office of Labour Department
which is situated at V Floor of M.S.Building, Bengaluru,
there, C.Raju, SDA, was working and the accused was
not there. Both he and PW.1 were waiting outside till
the arrival of accused to his chamber. On arrival, PW.1
had approached the accused. The accused demanded
the money. Then P.W.1 handed over Rs.200/- to the
accused. The accused had kept Rs.200/- in his pant
pocket. On signal being made by PW.1, the Lokayukta
Police conducted raid and seized the said currency notes
from the accused and also conducted trap mahazar. He
further states that, he along with PW.3 have signed the
trap mahazar and also witnesses to the incident.
Though he denied that he has not seen the tape-
recorder and he has not heard the conversation said to
have taken place between PW.1 and the accused, but he
has supported the case and described the incident
effectively. Though in the cross-examination, the
defence counsel subjected him for lengthy cross-
examination, nothing has been elicited to discredit the
veracity of this witness.
16. Similarly, PW.3 accompanied I.O. and he was
standing along with I.O. and waiting for signal to be
given by PW.1. He has almost reiterated the evidence
of PW.2 and supported the case of the prosecution with
regard to seizure of currency notes from accused,
washing of hands in order to conduct examination. The
said examination shows that, after washing the hands of
the accused, the solution turned into pink colour which
clearly discloses that the currency notes were smearing
of phenolphthalein powder. These two witnesses have
consistently deposed about the trap and the mahazars.
The trial Court on considering the evidence of these
witnesses and also the evidence of PW.1, opined that
the essentiality of the provision of sections 7 and
13(1)(d) and 13(2) of the Prevention of Corruption Act
has been fulfilled and accordingly, convicted the
accused.
17. it is the case of the Appellant that, the Trial
Court before concluding that there was a demand and
acceptance of bribe by the accused, should have verified
and analysed the facts and circumstances of the case.
Since, the trial court failed to appriciate the facts and
circumstances, the impugned order had been passed. In
this back ground let me analyze the evidence and
circumstances once again. Admittedly, PW.1 has
deposed that, to notify the award of the Labour Court,
there was demand and acceptance of Rs.200/- by the
accused. However, PW.2 and PW.3 and also PW.5 have
been consistent in their evidence that, on 05.07.2004,
when the alleged trap said to have taken place in the
office of the Labour Commissioner, Bengaluru, the file
pertaining to the award passed by the Labour Court
belonging to the complainant had been to Labour
Commissioner much earlier. There was no occasion for
the accused to demand Rs.200/- from the complainant
to get his work done. Admittedly, as per the evidence of
PW.2 and PW.3, the complainant has forcibly put
Rs.200/- in the pant pocket of the accused which clearly
discloses that there was no demand and acceptance as
stated by PW.1.
18. Before arriving at a conclusion, it is necessary
to place reliance on the judgment of this Court in the
case of STATE, By Lokayukta Police, Mandya v.
K.M.Gangadhar reported in 2008(2) KCCR 985. Held -
Prevention of Corruption Act, 1988 - sections 7 and
13(1)(d) - Evidence on record brings out the fact of the
currency notes being recovered from the pocket of the
accused and his hands being tested positive, yet, they
themselves are not sufficient to hold that the accused
demanded illegal gratification from the complainant and
received the same.
19. In another judgment of this Court reported in
ILR 2010 Kar 1983 between STATE OF KARNATAKA,
Through Police Inspector, Bureau of Investigation vs.
ANAND GURURAO DESHPANDE - HELD - Prevention of
Corruption Act, 1988 - sections 7 and 13(1)(d) read
with section 13(2) - offences under - charges against
the accused - trial - judgment of acquittal - appealed
against - presumption under section 20 of the Act -
burden on the accused to rebut the presumption -
consideration of - held, there has to be an evidence
establishing the demand and acceptance of the
gratification. It is only on such evidence invoking of
section 20 of PC Act for drawing presumption against the
accused arises - the factum of acceptance of amount, if
it is not proved by the prosecution then drawing
presumption under section 20 of PC Act may not arise.
20. On careful reading of the dictum of this
Court, it is made it clear that, mere seizure of currency
notes and washing of hands is not sufficient to prove the
illegal gratification. In the present case, as per the
evidence of PW.2 and PW.3, it appears that their
presence as shadow witnesses to the incident appears to
be doubtful in the mind of this Court. It is the case of
the prosecution is that, a tape recorder was handed over
to the complainant for recording of the conversation and
the said tape recorder had been seized in the presence
of P.W.2 and P.W.3. but, the seizure of the tape
recorder in the presence of P.W.2 and P.W.3 has been
denied by these two witnesses. Hence, it creates the
doubt in the mind of the court about presence of P.W.2
and P.W.3, this contradiction would obviously be
benifitted to the accused. Further, it is an admitted fact
that, the prosecution has failed to prove that the
appellant had withheld the file with him for illegal
gratification. Such being the fact, the trial court has
committed an error in concluding that, the accused has
been found guilty.
21. in view of observation made above, i feel it
necessary to allow this appeal. Accordingly, I pass the
following;
ORDER
i) The appeal filed by the Appellant is allowed.
ii) The judgment and sentence passed dated
01/08/2011 in Spl.C.C. No.55/2005 on the
file of the Special Judge, bengaluru urban
District, Bengaluru City is hereby Set - aside.
iii) The accused is acquitted for the offence
under section 7, 13(1) (D) and 13(2) of the
Prevention of Corruption act.
iv) The Registry is directed to transmit the
record to the concerned court for neceaasry
complaince.
Sd/-
JUDGE
BSS
