Sri. Roopla Nayak S/O L. Nemya ... vs The State Of Karnataka
2022 Latest Caselaw 8906 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF JUNE, 2022

                         BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200121/2015


Between:

Sri Roopla Nayak S/o L. Nemya Nayak,
Age: 52 Years, Occ: Accounts Officer,
GESCOM Divisional Office, Sindhanur,
R/o Vyasapur Tanda,
Tq. Agaribommahalli, Dist. Bellary
                                               ... Appellant
(By Sri Anilkumar Navadagi, Advocate for
 Sri Shivanand Pattanashetti, Advocate)

And:

The State of Karnataka
Represented by SPP
High Court of Karnataka, Kalaburagi.
(Through PSI of Lokayukta P.S.
Raichur)
                                             ... Respondent
(By Sri Subhash Mallapur, Spl. PP)
      This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to admit this appeal, call for the records
from the Court below and set aside the judgment of
conviction and order of sentence dated 18.11.2015 passed
by II-Additional District and Sessions Judge, Raichur, in
Special     Case     No.10/2013       and     acquit    the
appellant/accused.
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      This appeal coming on for Hearing, this day, the
Court delivered the following:

                        JUDGMENT

The accused being the appellant is before this Court

challenging the impugned judgment of conviction and

order of sentence dated 18.11.2015 passed in Special Case

No.10/2013 on the file of the learned II-Additional District

and Sessions Judge, Raichur, (hereinafter referred to as

'Trial Court') convicting the accused for the offences

punishable under Sections 7, 13(1)(d) r/w Section 13(2) of

the Prevention of Corruption Act, 1988 (for short 'PC Act')

and sentencing him to undergo rigorous imprisonment for

a period of two years and to pay a fine of Rs.15,000/- for

the offence punishable under Section 7 of the PC Act and

to undergo rigorous imprisonment for a period of two

years and to pay a fine of Rs.15,000/- for the offence

punishable under Section 13(1)(d) of the PC Act, with

default sentence.

2. The appellant-accused is charged for the

offences punishable under Sections 7, 13(1)(d) r/w Section

13(2) of PC Act, on the basis of the FIR lodged by

informant-Sri Mahiboob S/o Rajmohammed and the trap

was held in Crime No.8/2012 of Raichur Lokayutka Police

Station.

3. Brief facts of the case are that, the informant-

S.Mahiboob S/o Rajmohammed lodged first information as

per Ex.P1 with Lokayukta Police, Raichur, alleging that he

was working as Junior Engineer in the Divisional Office

GESCOM, Sindhanur and he had applied for surrendering

earned leave and encashment of the same during

September 2012. The accused was working as Accounts

Officer in the said division and he had not processed the

said application, but was demanding bribe of Rs.5,000/-.

On 17.12.2012, the informant had called the accused over

his phone and enquired about his application. He asked

him to come on the next day. When the informant

bargained saying that he is not in a position to pay

Rs.5,000/- and offered to pay either Rs.2,000/- or

Rs.3,000/-, the accused agreed for the same and asked

him to come on the next day. The informant lodged first

information with the Lokayukta Police, as he was not

willing to give bribe amount. He has produced Rs.3,000/-

that is to be tendered to the accused. Accordingly, FIR in

Crime No.8/2012 was registered and entrustment

panchanama was drawn in the presence of two witnesses.

It is stated that the informant along with shadow witness

visited the office of the accused and the accused had again

demanded for Rs.3,000/-. When the informant tendered

tainted money entrusted to him, the accused gave an

envelope and asked him to keep the currency notes in it.

Accordingly, the informant kept tainted money in the

envelope and gave to the accused. Inturn, the accused

kept it in his table drawer. When the informant was

coming out of his chamber, the accused took out envelope

and counted the currency notes and again kept it in the

drawer. The shadow witness was witnessing all these

developments through window. The informant gave signal

to the Investigating Officer by wiping his face with

kerchief. Immediately, the Investigating Officer along with

co-panch came to the office of the accused, introduced

himself to the accused and his hand wash was taken which

turned into pink colour suggesting that the accused had

accepted tainted money. The accused had given his

explanation in his own handwriting stating that the

informant had given an envelope and the accused had kept

in the drawer. The informant kept Rs.3,000/- in the

envelope. The accused further stated that the

Investigating Officer asked the accused to open envelope

and accordingly, he handed over it to the Investigating

Officer. It is stated that the file relating to the informant

was with the office assistant of the accused and he

produced the same. As per the records, Assistant

Accounts Officer had already signed the application for

sanction of leave encashment, but the accused had not

signed the said application. The service records were

collected through Junior Engineer and a trap mahazar was

drawn. It is stated that the accused who was working as

public servant demanded and accepted illegal gratification

of Rs.3,000/- to show official favour to the first informant

i.e., to sanction the leave encashment benefit, as the

application was pending with him. Thereby, he has

demanded and accepted illegal gratification and committed

criminal misconduct.

4. After filing of the charge sheet, with sanction

order obtained to prosecute the accused, the learned

Sessions Judge took cognizance of the offences and

summoned the accused. The accused appeared before the

Court and pleaded not guilty for the charges leveled

against him. The prosecution examined PWs.1 to 10, got

marked Exs.P1 to P34 and identified M.Os.1 to 9 in support

of its case. The accused denied all the incriminating

materials available on record in his statement recorded

under Section 313 of Cr.P.C., and also given his written

version. However, he has not stepped into the witness box

to depose about his defence. The Trial Court after taking

into consideration all these materials on record, came to

the conclusion that the prosecution is successful in proving

the guilt of the accused beyond reasonable doubt.

Accordingly, the accused was convicted and sentenced for

the above said offences.

5. Being aggrieved by the same, the accused is

before this Court seeking to set aside the impugned

judgment of conviction and order of sentence passed by

the Trial Court and to acquit him.

6. Heard Sri Anilkumar Navadagi, learned counsel

for Sri Shivanand V. Pattanashetti, learned counsel for the

appellant and Sri Subhash Mallapur, learned Special Public

Prosecutor for the respondent-Lokayukta.

7. Learned counsel for the appellant submitted

that the accused was working as Accounts Officer and he

was a public servant. The informant was also working as

Junior Engineer at GESCOM i.e., in the same division.

Even though the prosecution has laid voluminous evidence,

it has not proved the demand and acceptance. It has also

not proved that the official work was pending with the

accused. It is only a motivated trap, which was stage

managed by the informant. The learned counsel submitted

that the application for leave encashment was submitted to

the Assistant Executive Engineer on 25.09.2012 as per

Ex.P22. This application was submitted asking to encash

the leave for the period from 01.10.2012 to 29.11.2012.

But, there was delay in submitting the application. The

said file was not with the accused, as the same was not

sanctioned by the Executive Engineer. He further

submitted that even though the informant contended that

there was demand and acceptance, shadow witness who is

examined as PW.4 has not supported the case of

prosecution. It is only interested version of PW.1 regarding

demand and acceptance against the accused. Even as per

the informant, he had kept tainted money in a cover and

kept it in the drawer. If that version is to be believed,

there was no occasion for the accused to touch the tainted

money and therefore the hand wash of the accused could

not have been turned into pink colour to have the traces of

phenolphthalein powder. Therefore, it is clear that it is a

stage managed trap. He further submitted that PW.1

categorically stated that when he went to the office of the

accused, he was not there, but had gone for lunch. Taking

advantage of the said situation, PW.1 himself had kept

tainted money in a cover inside the drawer. The accused

has explained these situations in his written version after

recording his statement under Section 313 of Cr.P.C.

When the prosecution failed to prove the pendency of

official work with the accused, demand and acceptance of

illegal gratification, the Trial Court could not have

convicted the accused. Therefore, the impugned judgment

of conviction and order of sentence passed by the Trial

Court is perverse, illegal and without any basis. Hence, he

prays for allowing the appeal by setting aside the

impugned judgment of conviction and order of sentence

passed by the Trial Court in the interest of justice and to

acquit the accused.

8. Per contra, learned Special Public Prosecutor

opposing the submission made by the learned counsel for

the appellant submitted that the appellant was admittedly

working as Accounts Officer in the division where the

informant was also working as Junior Engineer.

Admittedly, an application for surrendering of leave and its

encashment was filed during September, 2012. The first

information was lodged on 18.12.2012, till then the

accused who was the Accounts Officer had not processed

the application nor he had signed the document. At the

time of trap, concerned application was with the Office

Assistant of the accused which is marked as Ex.P22 which

clearly discloses that the application was submitted with

Executive Engineer on 25.09.2012 and the Assistant

Accounts Officer had already signed the document

recommending for sanction. However, the said application

was never placed before the Sanctioning Authority by the

accused nor he had signed the same. Therefore, it is a

clear case of keeping the application pending by the

accused without any explanation. The accused has given

his explanation as per Ex.P26 wherein he has stated that

PW.1 had given Rs.3,000/- by keeping it in an envelope.

Apart from that, he had no other explanation. Therefore,

the accused categorically admitted acceptance of illegal

gratification in his explanation tendered at the initial point

of time.

9. The learned counsel further submitted that the

informant who is examined as PW.1 fully supported the

case of prosecution. He withstood the lengthy cross-

examination by the learned counsel for the accused. PW.5

is the Assistant Accounts Officer who signed Ex.P22-the

application submitted by the accused and stated that the

file was pending with the accused. There is absolutely no

reason as to why his evidence is to be disbelieved.

Moreover, Ex.P22 was seized from the Office Assistant of

the accused which was never disputed. There is absolutely

no reason assigned by the accused as to why the

application was kept pending. He further submitted that

regarding demand and acceptance, the evidence of PW.1 is

very much convincing. Even though the shadow witness

turned hostile for the reasons best known to him, he

specifically stated that the informant had gone and met

the accused and he told that he had paid tainted money to

the accused. The witness also stated that money in

question was lying in an envelope in the table drawer of

the accused. Therefore, prosecution has discharged its

initial burden of proving demand and acceptance of illegal

gratification in respect of pending work of the informant

with him. Therefore, presumption under Section 20 of the

Act would arise in favour of the prosecution and it is for

the accused to rebut the said presumption.

10. Learned counsel further submitted that during

the course of cross-examination, the accused has not

taken any defence worth mentioning and he has denied all

the incriminating materials available on record. But, he

has filed detailed written version which is not supported by

either Ex.P26 or by the tenor of cross-examination of

prosecution witnesses. The accused has not stepped into

the witness box for the reasons best known to him.

Therefore, adverse inference will have to be drawn against

him. The Trial Court after taking into consideration all

these materials on record, came to the conclusion that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt. There is no reason to interfere

with the impugned judgment. Hence, he prays for

dismissal of the appeal.

11. Perused the materials on record including the

Trial Court Records. Considering the rival contentions of

the parties, the following point would arise for my

consideration:

"Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court? What order?"

My answer to the above point is in 'Negative' for the

following:

REASONS

12. It is the specific contention of the prosecution

that the accused was a public servant. The informant had

filed an application for encashment of his earned leave.

The said application was pending with the accused and to

attend the same, he demanded Rs.3,000/-. When the

informant tendered tainted money of Rs.3,000/- on

demand by the accused, the accused gave an envelope

and asked the informant to keep the money in it.

Accordingly, the informant kept the money in the envelope

and handed over to the accused. Inturn, the accused kept

it in his table drawer. However, when the informant was

coming out of his office, the accused opened the cover,

took out the currency notes, counted it and kept it as it is.

On receiving the signal from the informant, the

Investigating Officer along with co-panchas came and

trapped the accused.

13. It is not in dispute that the accused is a public

servant and the informant is also a Junior Engineer

working in the same division i.e., GESCOM. It is also not

in dispute that the informant had submitted an application

for leave encashment. The accused is disputing that the

said application was pending with him and that he

demanded and accepted the illegal gratification.

14. To prove that the application was pending with

the accused, the prosecution has examined the informant

himself as PW.1. This witness categorically stated that he

had submitted an application which was pending with the

accused who had not placed it for sanction nor signed the

same. PW.5 is the Assistant Accounts Officer who also

supports this contention. The Investigating Officer stated

that when the accused was asked to produce the

application relating to the informant, he stated that the

same is with the Assistant-Kariyappa. Accordingly,

Kariyappa produced the same. The said application is as

per Ex.P22.

15. As per Ex.P22, the informant had submitted an

application surrendering his leave for the period from

01.10.2012 to 29.11.2012. The Assistant Executive

Engineer has endorsed receipt of the application on

25.09.2012. This application also discloses that the

application was attended to and the Assistant Accounts

Officer i.e., PW.5 had signed the same recommending for

sanction of the encashment of the earned leave. However,

signature of the sanctioning officer and of the Accounts

Officer i.e., accused is pending on the application.

16. PW.5 in his evidence stated that leave

surrender application was pending before the accused.

During the course of cross-examination by the learned

counsel for the accused, it is elicited that the Executive

Engineer was on leave and therefore, application was

submitted to the Assistant Executive Engineer and that the

sanctioning authority i.e., Executive Engineer will only

endorse on the leave surrender application and rest of the

work was required to be done by the accused. The

accused being the Accounts Officer he was required to

issue the cheque.

17. Regarding demand and acceptance of illegal

gratification, PW.1 has deposed in detail and also stated

that the accused himself gave an envelope and asked to

keep the money in it and accordingly, he kept it in the

envelope and given it to the accused. While coming back,

the accused again took out the envelope and counted

money and kept it as it is. Thereafter, he gave signal to

the police. It is suggested to the witness during the

course of cross-examination that when the accused had

gone out for lunch, he kept the money in the envelope and

placed in the drawer. The said suggestion was denied by

PW.1. Version of PW.1 that the accused had himself given

the envelope asking him to keep money inside and the

accused had removed the envelope and counted the

money while he was going back was never controverted

during the course of cross-examination. PW.1

categorically stated that the shadow witness, PW.4 had

accompanied him and he was standing outside peeping

into the window. Even though the witness was subjected

to cross-examination, nothing has been elicited from him

to disbelieve his version.

18. PW.4 is the shadow witness who has not

supported the case of the prosecution to the extent of

demand and acceptance. Even though the learned

Prosecutor cross-examined the witness at length, nothing

has been elicited from him. Now the question is as to

whether the evidence regarding demand and acceptance is

to be disbelieved only on the ground that the shadow

witness has not supported the case of prosecution.

19. When there are materials placed before the

Court to show that the application Ex.P22 was pending

with the accused, the tainted money of Rs.3,000/- was

found in the drawer of the accused and when the hand

wash of the accused turned pink colour suggesting

presence of phenolphthalein powder, the evidence of PW.1

with regard to demand and acceptance will have to be

accepted. Corroboration of evidence of the informant is

not the requirement of law. If the evidence of a witness is

not convincing, the Court may look for corroboration. The

success of the case of the prosecution cannot be at the

mercy of the shadow witness. The prosecution can prove

its contention independently. In the present case,

evidence of PW.1 is supported by Ex.P22, entrustment

panchanama, trap panchanama and the evidence of PW.8-

Investigating Officer. PW.5 has also supported the case of

the prosecution who is none other than Assistant Accounts

Officer working under the accused, regarding pendency of

work. Under such circumstances, I do not find any

reasons to discard the evidence of PW.1 and to extend the

benefit of doubt to the accused. When the prosecution is

successful in proving demand and acceptance of illegal

gratification, recovery of tainted money from the accused

and also pendency of official work with the accused,

presumption under Section 20 of the Act arises in favour of

the prosecution and against the accused. It is for the

accused to rebut the said presumption by probabilizing his

defence.

20. Immediately, after a trap, the Investigating

Officer got explanation of the accused regarding

possession of the tainted money, as per Ex.P26. This

explanation is in his handwriting. This fact is not denied

by the accused. As per Ex.P26, the accused has stated at

the earliest point of time that the informant-S. Mahiboob

came and kept an envelope with Rs.3,000/- in his table

drawer even though he had not demanded any money. He

further stated that when the Investigating Officer came

and the envelope was opened, amount of Rs.3,000/- was

found inside.

21. It is interesting to note that the accused has

filed a detailed version in writing after recording of his

statement under Section 313 of Cr.P.C., which reads as

under:

"The accused submits his further Statement U/s.313 Cr.P.C. as follows:

1. That, at the relevant time the Accused was working as Accounts Officer in the Divn. Office, GESCOM, Sindhanur. The complainant J.E. working at that time in Divn. Office, Sindhanur submitted his application before Asst. Ex. Engn. in GESCOM Divn. Office,

Sindhanur. As per rules and regulations such application seeking surrender leave salary shall be submitted before Ex. Engineer, GESCOM. This accused did not received the application of complainant for surrender leave salary. With all this the complainant pressed this accused to take that application and to do his work. The accused refused for the same. Apart from that all was not well between accused and complainant in official work. Due to such strained relations the accused has filed the false complaint by falsely pinning down this accused for the fictitious offences.

2. That, in fact this accused neither demanded nor accepted any bribe money from the complainant. During lunch hours on the alleged date of trap the accused had gone for lunch and in his absence it appears complainant has placed the tainted money in putting in cover in drawyer of table of accused. When accused came back to office at 3 p.m. the complainant and police came inside of room and asked the accused to remove the cover in the drawyer of table. The Lokayuktha police commanded the accused to remove the bribe money from cover and count it.

Accordingly the accused did it. The said events clearly suggests that the accused is innocent and complainant not having any work with accused and the accused neither demanded nor received the tainted money.

3. That, the accused secured relevant documents from his superiors regarding the case in question and submitting the same with separate list with this statement.

Hence, it is most humbly prayed that, the Hon'ble Court be pleased to receive this further statement of accused U/S. 313 Cr.P.C. and to consider the documents filed under list at the time of recording evidence, to secure the ends of justice."

22. None of these defences were taken by the

accused at the earliest point of time while giving

explanation as per Ex.P26. If the accused had not at all

received application in question seeking surrender of leave,

if the informant had pressurized the accused to do the job

and there was strained relationship between the two,

definitely, the accused could have stated so in his written

explanation.

23. It is also pertinent to note that the accused has

taken a specific defence that when he had gone for lunch,

the informant deliberately placed the tainted money in a

cover in the table drawer of the accused and thus, tainted

money was found in his table drawer. This was not stated

by the accused in Ex.P26. If at all the informant had kept

the envelope in the table drawer of the accused when the

accused was away for lunch, he could have atleast stated

that he was not aware of such an envelope which was

found in his table drawer. But, on the other hand, in

Ex.P26 as stated earlier, he specifically stated that the

informant came with an envelope with Rs.3,000/- and

gave it to him which was kept in the table drawer. This

explanation would not have been possible if the defence

taken by the accused at the later point of time was true.

The accused is a public servant and he knew that he was

trapped by Lokayukta police. Therefore, when his

explanation was sought by the Investigating Officer, he

could have easily stated that he had never received the

application submitted by the informant or that he is having

strained relationship with the informant. There is

absolutely no explanation as to why such a defence was

not taken at the earliest point of time. It is also pertinent

to note that the accused had not stepped into the witness

box to speak about his defence. If the accused examined

himself as witness, the prosecution would have got an

opportunity to cross-examine him about the defence he

has taken at the later point of time. Deliberately, such an

opportunity was denied by not stepping into the witness

box and simply filing written version as stated above. If

the application for sanction of the leave surrender benefit

was not at all pending with the accused, the informant

pressurizing the accused to attend his application would

not have arisen.

24. It is to be noted at this stage that even though

a very specific defence was raised by filing written version

after recording his statement under Section 313 of Cr.P.C.,

tenor of cross-examination of various prosecution

witnesses in general and informant-PW.1, Accounts

Officer-PW.5 and PW.8-Investigating Officer in particular is

not in accordance with such an explanation. The entire

cross-examination of these witnesses never makes out

such a defence. No ill-will or motive suggested to PW.5

who is the Assistant Accounts Officer working under the

accused who has categorically stated that the application

in question was pending with the accused, which he has

already signed. Under such circumstances, PWs.1, 5 and 8

have no reason to depose against the accused without any

basis.

25. In view of the discussions made above, it is

clear that even though the prosecution is successful in

proving the guilt of the accused, the accused has failed to

rebut presumption under Section 20 of PC Act. The

defence taken by the accused is not consistent from the

beginning and there is improvement in such defence,

which is not explained by the accused. Therefore, I am of

the opinion that the prosecution is successful in proving

the guilt of the accused beyond reasonable doubt and

accused is liable to be convicted.

26. I have gone through the impugned judgment

of conviction and order of sentenced passed by the Trial

Court. It has taken into consideration the materials on

record and appreciated it in a proper perspective. The

accused has not made out any ground to interfere with the

impugned judgment of conviction and order of sentence

passed by the Trial Court. Therefore, I do not find any

reason to interfere with the same.

27. Hence, my answer to the above point is in

'Negative' and I proceed to pass the following:

ORDER

Criminal Appeal is dismissed.

Sd/-

JUDGE NB*