Kashinath S/O Mahantappa Sajjan vs The State Of Karnataka
2022 Latest Caselaw 8521 Kant

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                                       CRL.A No. 2773 of 2013


          IN THE HIGH COUR T OF KARNATAKA,
                   DHARWAD BENCH

       DATED THIS THE 10TH DAY OF JUNE, 2022

                           BEFORE

       THE HON'BLE MR JUSTICE V.SRISHANANDA

        CRIMINAL APPEAL NO.2773 OF 2013 (C)

BETWEEN:

    SHRI KASHINATH,
    S/O MAHANTAPPA SAJJAN
    AGE: 55 YEARS,
    BACKWARD COMMUNITY AND MINORITIES, WELFARE
    DEPARTMENT, DHARWAD,
    DIST: DHARWAD.

                                                  ...APPELLANT
(BY SRI SHANKAR.P HEGDE, ADVOCATE)

AND:

    THE STATE OF KARNATAKA,
    BY LOKAYUKTA POLICE,
    DHARWAD.

                                                ...RESPONDENT
(BY SRI ANIL KALE, SPECIAL P.P.)

       THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. R/W
27 OF PC ACT, 1988, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER DATED 23.09.2013 PASSED BY
THE III-ADDL. DIST. & SESSIONS & SPL. JUDGE, DHARWAD, IN
SPL.(KLA).C.C.NO.4/2012 AND TO ACQUIT HIM TO MEET THE ENDS
OF JUSTICE.


     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                          CRL.A No. 2773 of 2013


                        JUDGMENT

The appeal is by accused No.1 against judgment and

order of conviction dated 23.09.2013 passed in Special

(KLA)C.C.No.4/2012 by the III Additional District &

Sessions and Special Judge, Dharwad, "(the Special

Judge" for short) whereby convicted for the offences

punishable under Sections 7, 13(1)(d) and 13(2) of the

Prevention of Corruption of Act, 1988 (PC Act) and

sentenced to undergo imprisonment as under:

Default Offences Punishment Fine sentence Section 7 of rigorous Simple P.C.Act. imprisonment Rs.2,500/- imprisonment for of one year two months.

  Section          rigorous                            Simple
13(1)(d) r/w    imprisonment                      imprisonment for
                                     Rs.2,500/-
  13(2) of       of one year                        two months.
  P.C.Act.

2. Brief facts of the case are as under:

A complaint came to be lodged by Sri Amit Hiremath

son of Shivabasayya Hiremath with Lokayukta Police on

21.04.2011. The same is registered by Lokayukta Police in

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Crime No.5/2011 for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of PC Act.

3. In the complaint, the following averments are

found. The complainant was selected as Accountant in the

year 2010 in the Municipal Administrative Department and

he had sought for the appointment under IIIB category

and he had to furnish Caste Certificate that is the

complainant belongs to IIIB category to the Municipal

Administration Department in the prescribed From No.1 in

February 2011. He had also annexed the transfer

certificate issued by the School Authority of his father

along with the application to establish that the

complainant belongs to IIIB category. In that regard, he

had visited the Social Welfare Department and met Sri

Kashinath Sajjan who was working as a Second Division

Assistant. On enquiry, Sri Kashinath Sajjan told that he

would forward the application on the same day, provided,

he is looked after well (RĶ PÉÆqÀ¨ÉÃPÁUÀÄvÀÛzÉ) payment of

illegal gratification).

CRL.A No. 2773 of 2013

4. The complainant replied that he is a student

and he does not have the money and he pleaded that the

application be forwarded at the earliest. Sri Kashinath

Sajjan replied that, he would send the Certificate within

15 days on payment of Rs.1,000/- or at least Rs.500/- as

illegal gratification as the same needs to be paid to higher

officials. Though, he was not willing to pay the illegal

gratification, since his father was not well, he told that

after a month he would agree to pay. Thereafter, he met

the Lokayukta Inspector on 19.04.2011 and he was given

a tape recorder and conversation was transpired between

the complainant and the accused. Thereafter, the

Lokayukta Police Inspector got convinced about the

contents of the complaint and arranged for trap. He

secured two Government Servants as mahazar witnesses

who are examined as PWs.2 & 3 and demonstrated to

them the chemical reaction of phenolphthalein powder

with sodium carbonate solution and also explained them

the contents of complaint and took one Rs.500/- currency

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note and smeared with phenolphthalein powder to it and

handed over it to the complainant and directed

complainant and shadow witness to go to office of the

accused and hand over the same and shadow witness was

directed to observe what transpires inside the office and

they were advised to give the pre-designated signal to the

raid party. Thereafter, entrustment mahazar was drafted

and all the members of the raid party proceeded to the

office of the accused on 21.04.2011.

5. After going inside the office, the complainant

met accused No.1 who was chewing the Betel nut and leaf

and he handed over the tainted currency to him, which he

received by his hand and gave it to driver-Basappa Morab

who is examined as PW.4, who in turn with a signal

handed over it to accused No.2. Likewise driver received

the tainted currency from accused No.1 and then hand it

over to the 2nd accused and complainant gave a pre-

designated signal to Rest of the raid party. Rest of the raid

party appeared in the scene of offence inside the office

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and came inside the office and enquired accused No.1

about the tainted currency and on his say, the currency

note was recovered from a photographer sitting in-front of

accused No.2. The serial number of the currency note was

tallied with experimental mahazar and found that the

same note was recovered from the photographer who was

examined as PW.5.

6. Accused Nos.1 & 2 were arrested and their

explanation was sought and trap mahazar was drafted and

colour test was conducted. Colour test stood positive

insofar as accused Nos.1 & 2 are concerned so also colour

test stood positive for PW.4 & 5. Trap mahazar was

drafted and accused Nos.1 & 2 were arrested. Thereafter,

Police Inspector investigated the matter and filed charge

sheet. Presence of accused Nos.1 & 2 was secured before

the Special Court and charges were framed. Since both

the accused pleaded not guilty trial was held.

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

16 witnesses were examined as PWs.1 to 16 and 72

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documents were exhibited and marked as Exs.P.1 to 72.

On behalf of the defence, 5 documents were exhibited and

marked as Exs.D.1 to D.5. The prosecution also relied on

16 material objects as MO.Nos.1 to 16.

8. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C was recorded. Wherein accused persons have

denied all the incriminatory substances found against

them. Accused persons have filed written submission as

contemplated under Section 313(5) of Cr.P.C, which reads

as under:

"STATEMENT FILED BY THE ACCUSED UNDER SECTION 313 CRPC

1. I have neither demanded nor accepted any illegal gratification from anybody much less from the complainant PW-1. The complainant has also admitted the same. The complainant has also admitted that I was chewing pan, as such I was not in a position to talk. He and Raju Meti shadow pancha PW-3 have also admitted that as soon as complainant kept money in my hand I split in backside window and gave money to driver Basappa Morab by telling him to give it to Accused No.2 with an action by indicating my hand and face towards the chamber of A-2. As PW-3 shadow pancha was far he might have

CRL.A No. 2773 of 2013

heard me talking and as Amit PW-1 was going towards A-2's chamber probably he might not have heard what I have told Basappa PW-4. But PW-4 has admitted that I have told him to give Rs.500/- to A-2.

2. I say that sanction order is bad as same is legally invalid and stems from non-application of mind.

3. No work of the complainant was pending with me I had forwarded the information about the caste certificate to Bangalore. Giving of TC of his father back to the complainant would have been done in normal course. The father of PW was a colly and was more than 57 years old.

4. I say that at no point of time I demanded any money from PW-1.

5. I say that the Lokayukta Police got filed false case against me.

6. I have old aged mother staying with me. I am the only son to look after them. I am the sole bread winner in the family and my wife is suffering from heart problem. Children are going to school and college. I am suffering from hypertension and diabetics besides being physical handicapped.

My case may be viewed sympathetically as I have no house of my own and no bank balance.

I have unblemished service record so far.

Therefore, I humbly pray to acquit me in the interest of justice.

Place: Dharwad Date: 101410013 ACCUSED KASHINATH SAJJAN

"WRITTEN STATEMENT OF THE ACCUSED NO.2 UNDER SECTION 313 OF CRIMINAL PROCEDURE CODE

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Herein I, digambar Shankar Karagudari the accused No.2 in the above case do hereby sum it my written statement to this Hon'ble Court as under :-

1. That the complainant in this case Amit Shivabasaiah Hiremath had submitted the application in From No.1 for the issue of caste and income validity certificates. Accordingly the District Caste and Income Verificastion Committee had issued validity certificate and the same was sent to the appointing authority i.e., the Commissioner of Municipal Administration, Bangalore.

2. I state that the complainant namely Amit Shivabasaiah Hiremath never met me or contacted me either for the issue of Caste and Income Validity certificate or regarding the return of Original School Leaving Certificate of his father. I further state that no work of the complainant was pending with me at the time when the alleged complaint is said to have been given

3. I state that on 21-04-2011 when was working in the office the Press photographer of Information and Publicity Department namely Mahadev Patil came to our office to ask for the payment of Rs. 700-00 being the charges of the photographs taken by him at Alur Venkatarao Sabha Bhavan Dharwad during the review of various developmental programmes for Minorities and benefits extended to the minorities held on 28- 03-2011 presided by Sri Anwar Manippadi the Hon'ble Chairman for State Minority Commission Bangalore.

4. I further state that I along with the photographer Mahadev Patil went to the chamber of my higher officer Sri. R. G. Olekar, District Officer Backward Classes and Minorities Dharwad and told him about the amount payable to the photographer

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Sri. Mahadev Patil. In turn my higher officer Sri. R. G. Olekar told me to arrange for the payment to the photographer and later on to recoup the same from the contingencies amount. Then I brought it to the notice my higher officer that I had only Rs. 200-00 with me. In turn my higher officer told me to arrange for the payment to the photographer by borrowing with the staff members. Accordingly with the bona-fide intention to make the payment to the photographer enquired with the staff members as to whether any of them can lend the money for the time being. However, at that time no one had enough money to make the payment to the photographer.

5. When I was about to bring it to the notice of my higher officer our office jeep driver namely Sri. Basappa B. Morab came and gave me a currency note of Rs 500-00 denomination. Presuming that the same is sent to me in regard with my earlier enquiry with the staff members for the payment towards photographer's bill, innocently I took it and by adding Rs. 200-00 which were in my pocket I made the payment of Rs. 700-00 to the photographer Sri. Mahadev Patil and obtained a receipt from him for having made the Payment of Rs 700-00 towards his bill.

6. Thereafter within few minutes the Lokayukta Police came to our office and started making enquiry and I heard from a police constable that the Lokayukta Police have trapped Sri. Kashinath M. Sajjan. Thereafter the Lokayukta Police recovered money from the photographer Sri. Mahadev Patil.

7. On 23-04-2011 when I was in my office all of sudden the Lokayukta Police came and arrested me. At that time I told the police that I am not at all concerned with the alleged case. However the police were not in a position to listen to me. The

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Lokayukta Inspector asked me to give a statement and accordingly I have given my statement in writing.

8. I state that I have never demanded any money from the complainant at any point of time and the say of the complainant in his deposition, in his restatement and in his statement before the Hon'ble Magistrate Court is not only false and concocted but it is after thought one and it is made only with the sole intention to falsely implicate me in the case.

9. I respectfully submit before this Hon'ble Court that, I have been prompt and faithful to my duty and I have never acted legally in my service. Accordingly I have given my written statement and I request this Hon'ble Court to adopt the same in this case.

Place: Dharwad Date: 11-09-2013 (Digambar Shankar Karagudari) Accused No 2

9. Thereafter, the Trial court heard the parties in

detail and passed the order of acquittal as against accused

No.2 and convicted accused No.2 and sentenced him as

referred to supra. Being aggrieved by the same accused

No.1 preferred the present appeal on the following

grounds.

The conviction and sentence against the appellant is illegal, invalid, contrary to the law,

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facts and circumstances of the case. Hence, it is liable to be set aside.

The Court below has erred in convicting the appellant for offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Since, complainant has turned hostile and PW-3 shadow witness did not speak about demand there is no corroboration for demand and acceptance of illegal gratification. On this count alone the Court below ought to have held that the respondent has failed to established the ingredients of Section 7 & Section 13(1)(d) of the Prevention of Corruption Act and as such should have acquitted accused.

To establish the guilt of the accused the prosecution has to prove and establish the demand and acceptance of illegal gratification by the appellant. In absence of the same, accused/appellant is liable to be acquitted. The Special Judge failed to consider the aspect of demand and acceptance of illegal gratification by the appellant. The deposition of witnesses on record clearly shows that the appellant never demanded and accepted any illegal gratification from complainant. The independent witnesses' viz. PW-1 to PW-4 also does not speak about demand and acceptance of bribe by the appellant. There was no occasion for the appellant to show any favour or disfavour to the complainant PW-2, as the work of the complainant was not pending with the appellant. Hence, there was no question of demand and acceptance of illegal gratification by the appellant. For sustaining conviction U/s.7 of P.C Act 1988 pendancy of work is essential. In the instant case no work was pending with the appellant as stated in document collat by I.O. The Special Judge has erroneously held that the

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work is pending by ignoring the fact that the work was not pending with accused.

It is submitted that the complainant Shri.Amit Gundappa PW-1turned totally hostile to the case of prosecution. PW-3 shadow witness Shri. Raju Meti also did not speck about alleged demand in the office of the accused. Thus, prosecution has utterly failed to prove demand & acceptance of illegal gratification of Rs.500/- for issuing Transfer certificate to the complainant. On this ground alone impugned order is liable to be set aside.

PW-1 has totally turned hostel to the case of the prosecution. The complainant has denied the suggestion of public prosecutor regarding demand in cross examination also complainant has admitted that appellant has not demanded. money. The complainant has clearly stated that the wat accused was chewing the pan as such, not in a position to talk. He has also admitted that the complainant never demanded money from him as the prosecution also as soon as money is given by the complainant to the appellant. He gave the money to driver who had come to collect the money. Accused No also admitted before the Special Court that he has receiver entire amount of Rs. 500-00.

The shadow witness PW-3 Raju Meti also stated that he has not heard the conversation between complainant and appellant. Thus demand is not proved by the prosecution. Even the voluntary acceptance Is also not proved by the prosecution. The Special Judge has failed to take these facts in to consideration.

It is humbly submitted that PW -1 to PW-14 that is all the witness accept 10 have supported the defense theory and all of them turned hostile.

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The Special Judge has failed to take this facts to the consideration..

It is submitted that the raiding party members have not offered personal search after entering the house of the accused. This casts serious doubt about planting of money in advance.

The photos relied upon by the Special Judge should have been discarded as no negatives of photos are produced to prove its genuineness. With this, the photos does not show where it is taken. The contents of 313 statement have not been taken into consideration.

The illegal gratification cannot be demanded in the presence of stranger. Even then, the Special Judge has accepted such an unnatural evidence and convicted the accused on presumption and assumption. Therefore, impugned order is liable to be set aside.

The sanction order is defective and stems from non application of mind.

The charge framed is different and the charge that is said to be proved in trial before Special Judge is different. On this ground alone accused should have been acquitted.

It is well settled Principle of Law that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the appellant when the prosecution has failed to prove the demand and acceptance. Mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe on demand. The prosecution shall also show that accused voluntarily. accepted the money knowing it to be bribe. The Hon'ble Special Judge has drawn wrong presumption by ignoring the fact that, in

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any trial of an offence punishable under sec. 7 presumption can be raised U/s.20 only when it is proved that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification other than legal remuneration. But in the instant case the prosecution has failed to prove the demand and acceptance beyond reasonable doubt as required under sec.7 of P.C. Act. Under such circumstances the presumption cannot be raised against the appellant that he demanded and accepted illegal gratification.

It is submitted that, the Hon'ble Special Judge. miserably failed to consider the evidence on record and came to a wrongly conclusion based on circumstantial evidence which seems to be unnatural. The circumstantial evidence in regard to the alleged commission of the offence by the appellant is not sufficient to establish the case of bribery. The finding arrived by the Spl. Judge is on surmise conjecture and assumptions. None of the witnesses have supported the prosecution regarding demand and acceptance of illegal gratification and under what circumstances it was alleged to be demanded and accepted by the appellant.

It is submitted that, in the instant case the respondent has totally failed to prove the aspect of demand which is sine qua non for either drawing presumption U/s.20 of P.C. Act 1988 or for holding the appellant guilty for offences punishable U/s.7 and 13(1)(d) of Prevention of Corruption Act 1988. The lower Court has lost. sight of the above said settled legal position. On this count alone the entire Judgment of conviction is liable to be set aside.

The Court below has not taken into consideration the fact that the shadow witness

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PW-3 has not heard or transaction between seen the alleged appellant and the Complainant. In absence of the element of demand and acceptance as can be seen from the records and depositions of witnesses i.e., PW-1 to PW-4, the Special Judge ought to have acquitted the appellant by considering the evidence in accordance with law other than on surmises and conjecture.

It is submitted that when the prosecution has failed to prove the case beyond reasonable doubt, the learned Special Judge has passed erroneous order assigning the imaginary and unjust reasons in the judgment. Therefore, the order of the learned Special Judge is incorrect and perverse.

The above facts shown that the story of the prosecution is unnatural and prima facie appears to be false. The appellant have never demanded and received any illegal gratification from anybody at any point of time.

It is humbly submitted that Accused No.1 was not aware whether the money Rs 500/- is illegal gratification or not. It is respectfully submitted that the Accused No.1 has never acted as facilitator to the other accused for taking illegal gratification and no allegations against the accused No.1 to that effect prior to this complaint.

The learned Special Judge has committed serious error in convicting the appellant by relying on the evidence of PW-1 but his evidence suffer from full of material contraction and omission, exaggeration and improvement which go to the root of the case and falsify the entire case of the prosecution.

It is submitted that the sanction accorded is bad in law, without authority and non application of

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mind. The cognizance taken by the Special Judge based on invalid sanction is bad in law and conviction of the appellant does not sustain wherein the cognizance taken. is not in accordance with law. The evidence of the sanctioning authority clearly shows that he has not applied his own mind and only on the decision of the higher authorities he has signed the sanction order.

The sanction is without authority and the same cannot be delegated. The sanction to the appellant has to be accorded by the Governor of Karnataka, but there is no whisper of the file sent to the Governor. Hence the sanction accorded is without application of mind and without there being authority of law and the validity of sanction the appellant is entitled to be acquitted.

It is submitted that the prosecution has suppressed the genuineness of the case and they have not come before the Court with clean hands against the appellant. But the learned Special Judge has come to wrong conclusion in convicting the Appellant. Thus the same has resulted in miscarriage of justice to the appellant.

It is submitted that the learned Special Judge has failed to understand the case of the defense while appreciating the witness and accepted the case of the prosecution and nor given importance to the defense version.

It is submitted that the prosecution has suppressed the genuineness of the actual incident and came with false story that the appellant demanded and accepted. The learned Special Judge also accepted the same and arrived to wrong conclusion in convicting the Appellant without assigning the proper and

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cogent reasons which is against to well settle principle of law.

It is submitted that the appellant was not in a position to do the work of the complainant as it was over. As such there is no question of demanding any illegal gratification from him.

The demand of money is concerned, shadow panch has remained silent and he specifically remains silent about demand between complainant and appellant. Since independent corroboration is a must to prove the theory of demand and acceptance of bribe, and therefore the Judgment of lower Court convicting the Appellant is bad in law.

The questionings under Section 313 Cr.P.C. are illegal in as much as the alleged incriminating materials pertaining to the charge are not put to the appellant seeking his explanation. The same has prejudiced his defence resulting in failure of justice.

10. Reiterating grounds urged in the appeal, Sri

Shankar Hegde, learned counsel appearing for the

petitioner submits that, the Special Judge has not properly

appreciated the material on record and has gone on

assumptions and presumptions to convict accused No.1.

11. He further argued that, the material evidence in

the form of admissions obtained in the cross-examination

in the evidence of complainant and in the oral evidence of

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shadow witness, who is examined as PW.3 is totally

ignored by the learned Special Judge while convicting

accused No.1. He further argued that non-filing of the

appeal insofar as acquittal of accused No.2 should enure

to the benefit of accused No.1 as well, while appreciating

the case of the appellant and sought for allowing the

appeal.

12. Oral testimony of PW.6 clearly shows that, as

on the date i.e., on 21.04.2011, the Caste Certificate

(Sinduthwa Pramana Patrike) was already prepared and

sent to official superior of accused No.1 and therefore

there was no work pending with the accused No.1 and the

same is totally ignored by the learned Special Judge while

passing impugned judgment and sought for allowing the

appeal.

13. Per contra Sri Anil Kale learned counsel

representing the respondent-Lokayukta Police did not

dispute the fact that no appeal is filed by the respondent-

Lokayukta against acquittal of accused No.2. However, he

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contended that, mere non-filing of the appeal against the

acquittal of respondent No.2 would not ipso-facto affect

the case of the prosecution in opposing the appeal filed by

the present appellant. He also contended that, the

complainant after thorough cross-examination having

supported the case of the prosecution was subsequently

made to turn hostile and therefore, the prosecution was

compelled to treat him as hostile witness and cross-

examined him. He further contended that again, the

complainant has given the favorable answers so as to

disbelieve the case of the prosecution in his further cross-

examination and therefore, applying the settled principles

of law that the testimony of hostile witness cannot be

thrown out of the records in toto and Court is bound to

appreciate the material evidence if a hostile witness to the

extent possible with the other corroborative materials on

record while forming an opinion that in a given case when

an accused is guilty or otherwise and thus sought for

dismissing the appeal. He also pointed out that, the

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shadow witness has supported the case of the prosecution

and so also the colour test which has been conducted soon

after the trap of accused Nos.1 & 2, the driver who carried

the tainted currency notes from the table of accused No.1

to accused No.2 and accused No.2 handing over the

tainted currency to PW.6, have all stood positive which

presupposes the handling of tainted currency by these

four persons. He also pointed that, PW.4 driver-Basappa

Morab has clearly supported the case of the prosecution in

deposing before the Court that after accused No.1

received tainted currency from the complainant hand it

over to him to be handed over to accused No.2 and he

obediently handed over the tainted currency to accused

No.2 after receiving the same from accused No.1. He also

pointed out that these aspects of the matter having been

established by the prosecution with cogent and convincing

evidence on record, mere acquittal of accused No.2 did

not cause any serious dent to the case of the prosecution

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in opposing of the present appeal and sought for dismissal

of the appeal.

14. In view of the rival contentions of the parties,

the following points would arise for consideration.

i. Whether the prosecution is successful in proving all ingredients to attract the offences alleged against the accused persons under sections 7 and 13(1)(d) read with Section 13(2) of PC Act?

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

iii. What order?

15. Regarding Point Nos.1 to 3 :- In the case on

hand, in order to prove the case of the prosecution,

prosecution relied on the evidence of PW.1. Who has

supported the case of the prosecution initially by deposing

about the contents of the complaint so also experimental

mahazar and with regard to the pre-trap proceeding

namely complainant and PW.3 shadow witness going to

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the office of accused and meeting accused No.1 and

handing over the tainted currency to him which accused

No.1 has received and handed over it to PW.4 and

signaled PW.4 to reach the tainted currency to accused

No.2. He has also specifically answered that at the time of

receiving the tainted currency, accused No.1 was chewing

betel nut and betel leaf and therefore he was not in a

position to speak anything and simply he received

Rs.500/- and hand it over to Basappa Morab and signaled

Basappa Morab to hand it over to accused No.2. In his

cross-examination, he specifically admitted that, accused

No.1 never demanded Rs.500/- from him towards the

illegal gratification.

16. PW.2 is the co-panch. His evidence is formal in

nature, with regard to the experimental mahazar and the

trap mahazar. No useful material is elicited to disbelieve

his testimony.

17. PW.3 is the shadow witness who has

accompanied PW.1 to the office of the accused. He

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deposed in line with the examination-in-chief about the

PW.1, experimental mahazar, trap mahazar and what

transpired at the time of handing over the tainted

currency. He also did not specifically depose before the

Court about accused No.1 demanding the tainted currency

as he has not seen what transpired between the

complainant and accused No.1.

18. PW.4 is the driver-Basappa Morab who carried

the tainted currency from the table of accused No.1 and

hand it over to the accused No.2.

19. PW.5 is the photographer who was sitting in-

front of the accused No.2, who received the tainted

currency from the hands of accused No.2.

20. PW.6 is the official superior of accused Nos.1 &

2 who admitted that as on the date of trap the Caste

Certificate was already made ready.

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21. PW.7 is examined to establish the voice of

accused No.1 which has been recorded in the voice

recorder. His evidence is formal in nature.

22. PWs.8 to 11 are the other officials of accused

Nos.1 & 2. Their evidence is formal in nature. None of

them has supported the case of the prosecution.

23. PW.13 is the sanctioning authority, PW.14 is

the investigating officer.

24. The above evidence on record is sought to be

re-appreciated by counsel for appellant.

25. On cumulative consideration of the above

material on record, it is seen that the prosecution has not

been able to establish the demand of illegal gratification

by placing cogent and convincing evidence on record in as

much as complainant has clearly admitted in his cross-

examination that accused No.1 never demanded illegal

gratification.

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26. Further, at the time of handing over the tainted

currency to the hands of accused No.1, was chewing betel

nut and betel leaf. Therefore he was not in a position to

speak to PW.1.

27. PW.3-shadow witness specifically answered that

he did not see what transpired, when PW.1 handed over

the tainted currency note to the hands of accused No.1.

28. Therefore, there is no material evidence on

record in the form of oral testimony with regard to

demand of illegal gratification. However, the voice

recorder i.e., sought to be relied on by the prosecution is

also not clear and there is no material evidence on record

in the form of voice recording showing that accused No.1

had demanded illegal gratification for the pending work of

PW.1 to be carried out in the office of accused Nos.1 & 2.

29. Further, the material evidence on record only

shows that accused No.1 received the tainted currency

from PW.1, which was in turn given to PW.4 with a signal

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that PW.4 should hand it over to accused No.2.

Accordingly the tainted currency note has been received

by PW.4. PW.4 in turn gave it to the accused No.2 and

accused No.2 gave it to PW.5.

30. PW.5 has not supported the case of the

prosecution and turned totally hostile. No doubt colour

test stood positive in respect of accused No.1, PW.4, PW.5

and accused No.2. Mere colour test turning positive itself

would not be sufficient enough to hold that prosecution

has established all ingredients to attract the offence.

Further material evidence on record shows that, as on the

date of 21.04.2011, the application of the complainant

had already been processed and sent to the higher

officials two months earlier to the trap.

31. Under such circumstances, since the work was

already completed yet another ingredient to attract

Sections 7 and 13(1)(d) read with Section 12(2) of PC Act

has not been established by the prosecution.

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32. In the light of above discussion, accused No.2

has been acquitted by the very same learned trial judge in

the impugned judgment. When such a view is permissible

in respect of accused No.2 what is the special reasons that

made the learned Trial Judge to record an order of

conviction on the very same set of evidence in respect of

present appellant is not forthcoming in the impugned

judgment.

33. Sri Anil Kale, learned counsel is also unable to

point out a special circumstances, which is adverse to the

appellant and favorable to accused No.2 in the impugned

judgment for recording an order of acquittal in respect of

accused No.2 and recording an order of conviction against

the appellant.

34. It is also pertinent to note in this regard that,

the respondent-Lokayukta has not preferred any appeal

against acquittal of accused No.2. Therefore, taking note

of these aspects of the matter, this Court is of the

considered opinion that the prosecution has not been able

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to successfully establish all ingredients to attract the

offences alleged against the appellant herein and therefore

point No.1 is answered in the negative. Consequently,

point No.2 is answered in the affirmative.

35. Regarding Point No.3:- In view of this Court

is answered Point Nos.1 & 2, Point No.3 is as per the final

order.

ORDER

The appeal is hereby allowed.

The impugned judgment and order of conviction dated 23.09.2013 passed in Spl.(KLA)C.C.No.04/2012 by the III Additional District & Sessions and Special Judge at Dharwad convicting the appellant-accused No.1 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of PC Act, is hereby set aside.

Bail bond stands discharged.

Fine amount deposited, if any, shall be returned to appellant-accused No.1 under proper identification.

SD/-

JUDGE EM