Ravikumar S/O Doddapa Batageri @ ... vs The State Of Karnataka
2022 Latest Caselaw 4946 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 17TH DAY OF MARCH 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR

          CRIMINAL APPEAL No.200078/2015

Between:

Ravikumar S/o Doddappa Batageri
@ Betageri, Age:34 years,
Occ: PDO, Gram Panchayat
Makanapur
R/at: Sirnal, Tq & Dist: Vijayapur
                                                   ... Appellant

(By Sri Avinash    A.Uploankar    &   Sri   Ravi   K.   Anoor,
Advocates)


And:

The State of Karnataka
R/by Spl. PP
High Court of Karnataka
Kalaburagi Bench
(Through Lokayukta P.S Vijayapur)
                                              ... Respondent

(By Sri Subhash Mallapur, Spl. PP for Lokayukta)


      This Criminal Appeal is filed under Section 374 (2)
Cr.P.C., praying to set aside the judgment of conviction
and order of sentence dated 09.07.2015 passed by the Prl.
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Sessions Judge/Special Judge at Vijayapur in Special Case
(LoK) No.5/2013 and acquit the appellant/accused.

      This appeal coming on for final hearing, this day, the
Court delivered the following:

                           JUDGMENT

This appeal is directed against the judgment of

conviction rendered by the trial Court in Special Case

(LOK) No.5/2013 dated 09.07.2015, whereby held

conviction against the appellant/accused for the

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

Section 13(2) of the Prevention of Corruption Act,

1988.

2. Whereas under this appeal, the appellant

seeking intervention by consideration of the grounds

urged in this appeal and setting aside of the judgment

of conviction and order of sentence rendered by the

trial Court and consequently acquit the

appellant/accused for the offences punishable under

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

Prevention of Corruption Act, for which held charge.

3. Heard the learned counsel Sri Avinash A.

Uploankar for the appellant and Sri Subhash Mallapur,

learned Special Public Prosecutor for the respondent

and perused the judgment of conviction and order of

sentence rendered by the trial Court in Special Case

(LOK) No.5/2013 whereby consisting of evidence of

P.Ws.1 to 11 and so also the documents at Exs.P.1 to

17 inclusive of the evidence of D.W.1 and

contradictory statement of P.W.1 marked at Ex.D1

and so also M.Os.1 to 10 got marked by the

prosecution.

4. The factual matrix of the appeal are as

under;

(a) It transpired in the case of the prosecution

that on 22.09.2002 at about 1.15 p.m. the accused

being a public servant working as Panchayat

Development Officer at Makanapur Gram Panchayat

demanded and accepted the bribe amount of

Rs.1,000/- as gratification other than legal

remuneration as a motive or reward from the

complainant Sri Somaling S/o Mahadevappa Jevoor for

issuing the Cheque towards the retirement benefits of

his father Mahadevappa Jevoor, who was working as

Clerk-cum-Accountant in Makanapur Gram Panchayat

and retired from the service on 30.06.2012. That on

27.07.2012, the Chief Executive Officer, Zilla

Panchayat, Vijayapura made a correspondence to the

Executive Officer, Taluka Panchayat, Vijayapura

stating that the father of the complainant submitted

an application to the Zilla Panchayat requesting to

disburse his retirement benefits and directed the

Executive Officer of Taluka Panchayat to grant

retirement benefits not exceeding 15 months salary

and the same should be paid from the Panchayat fund

and also directed to take necessary action in that

aspect. In pursuance of the above said letter, the

Executive Officer, Taluka Panchayat, Vijayapur has

passed an order on 16.08.2012 to the effect that the

father of the complainant is entitled for retirement

benefits of Rs.65,040/- and the said amount has to be

paid from the Gram Panchayat funds and the said

order comes into force immediately. These are all

aspect narrated in the complaint by approaching the

P.I. of the Lokayukta, Vijayapur.

(b). On receipt of the complaint made by the

complainant by approaching the Police Inspector of

Lokayukta, Vijayapura, a case in Crime No.11/2012

has been registered against the accused for the

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

of the Prevention of Corruption Act, 1988.

Subsequent to registering the crime in the presence of

the complainant who is the gravemen of the incident

narrated in his complaint and whereby the

Investigation Officer has conducted the Entrustment

Panchanama as Ex.P.3 in the presence of the panch

witnesses. P.W.5-Kiran Chandrakant Patil who is also

one of the panch witnesses and also termed as

shadow witness who accompanied with the

complainant Sri Somalinga to the office of the

accused. Subsequent to drawing of Entrustment

Panchanam at Ex.P.3, in the presence of both panch

witnesses the Police Inspector-P.W.10 along with the

complainant, panch witnesses and also the staff

members raided the office of the accused, as per the

contents of entrustment panchanam.

(c) During the mahazar said to have been

conducted by the investigating officer, i.e., Police

Inspector Lokayukta, Vijayapura who has approved

the demonstration said to have been conducted by

him in the presence of the panch witnesses relating to

preparation of solid solution and dipped the hand

fingers of the accused who came to contact applied

phenolphthalein powder. This demonstration has

been conducted by Police Inspector of Lokayukta P.S.

in the presence of panch witnesses. Subsequent to

demonstration panchanama has been conducted by

the Investigating Officer led the team to office of the

accused, whereby as per the instruction issued by

him, P.W.5 who is a shadow witness who accompanied

with the complainant to the office of the accused and

the raiding members have entered into the office of

the accused after receipt of a signal given by the

complainant by raising his hand and where the

accused alleged to have been trapped and thereafter

the Police Inspector, Lokayukta P.S. drawn the trap

mahazar as per Ex.P.7 in the presence of P.W.5, who

shadow witness and also in the presence of co-panch

witnesses.

(d) Subsequent to completion of the trap

mahazar in the presence of the panch witnesses and

so also in the presence of the complainant and

whereby therein also preparation of process of sodium

carbonate solution and both the hand fingers of the

accused have been dipped into the sodium carbonate

solution and same was turned into pink in colour and

this demonstration was also conducted by Police

Inspector, Lokayukta P.S., Vijayapura. During the

trap mahazar and even after completion of the

mahazar, the Police Inspector, Lokayukta P.S.,

Vijayapura whereby P.W.11, Police Inspector has

completed the entire investigation done by him and

also drew the entrustment panchanama at Ex.P.3 and

also trap mahazar as per Ex.P.7 and almost all

investigation has been completed by him and even

recording the statement of the witnesses and so also

securing the statement of the accused at Ex.P.5.

(e) During trap mahazar and also during

entrustment mahazar as per Exs.P.3 and Ex.P.5, one

C.D. is marked as M.O.1, Hand-wash solution of

panch-2 is marked as M.O.2, sample phenolphthalein

powder is marked as M.O.3, sample sodium carbonate

power is marked as M.O.4, right hand wash of the

accused is marked as M.O.5, shirt pocket wash of the

accused is marked as M.O.6, shirt of the accused is

marked as M.O.7, another C.D. is marked as M.O.8

and Cash of Rs.1000/- (500x 1 and 100 x g notes)

were marked as M.O.9 and one bottle containing pure

water was marked as M.O.10. These are all the

process has been done by P.W.11 being investigating

officer and thereafter P.W.10, who is also

investigating officer conducted part of investigation

and he secured the sanction order as per Ex.P.8 and

so also secured the FSL report at Ex.P.16 and such

other materials relating to laying of a charge sheet

and accordingly laid the charge sheet against the

accused before the Special Court.

5. After filing of the charge sheet, the trial

Court heard the learned Special Public Prosecutor and

also the learned defence counsel and after finding

prima facie materials against the accused framed the

charges for the offences punishable under Sections

13(1)(d) r/w Section 13(2) of the Prevention of

Corruption Act, 1988, whereby the accused did not

plead guilty and claims to be tried. Accordingly, plea

of the accuse has been recorded separately.

Thereafter, the case was posted for prosecution

evidence and the prosecution got examined P.Ws.1 to

11 and got marked Exs.P.1 to 17 and also got marked

M.Os.1 to 10.

6. After closure of the prosecution evidence,

the accused has been subjected to examination as per

Section 313 of Cr.P.C. and the accused declined the

truth of the evidence of the prosecution adduced

sofar. Thereafter the accused was called upon to lead

defence evidence as per Section 233 of Cr.P.C.

Accordingly, accused got examined one witness

namely, Sri Bheemanna Somanna Biradar as D.W.1

and got marked one document as Ex.D1.

7. After closure of the evidence of both sides,

the trial Court heard the arguments of both sides and

scrutinized both oral and documentary evidence

inclusive of evidence of P.W.1-Somaning, who is the

complainant and P.W.8-Mahadevappa who is none

other than the father of P.W.1, who filed the complaint

as per Ex.P.1. P.W.5-Kiran Chandrakant Patil who is

the shadow witness and he was accompanied with the

P.W.1 to the office of the accused. P.W.6-Ashok

Gurupadappa Galagali is alleged to accompanied the

accused and P.W.3-Chandrashekhar, who is an official

and P.W.4-Shivaputra Mahadev Doddamani is the

official witness identified the process.

8. P.W.10 who is the investigating officer laid

the charge sheet against the accused, but the entire

investigation has been done by P.W.11 being the

Police Inspector, Lokayukta P.S., Vijayapura, their

evidence has been scrutinized by the trial Court and

also the fulcrum of the Entrust Mahazar at Ex.P.3 and

the trap mahazar at Ex.P.7 inclusive of according of

sanction as per Ex.P.8 and service particulars of the

accused inclusive of the FSL report at Ex.P.16,

whereby the trial Court convinced the evidence

facilitated by the prosecution and rendered the

judgment of conviction and order of sentence for the

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

13(2) of the Prevention of Corruption Act, 1988. It is

this judgment which is challenged under this appeal

by urging various grounds.

9. Whereas, learned counsel Sri Avinash A.

Uploankar has taken me through the evidence of

P.W.1 in respect of the averments made in the

compliant at Ex.P.1 and so also the entrustment

mahazar at Ex.P.3 and so also trap mahazar at Ex.P.7,

but in the absence of the evidence on the part of the

prosecution i.e., adequate evidence to prove the guilt

of the accused in respect of the demand and

acceptance of the illegal gratification, but it is the

domain vested with the prosecution to facilitate by

leading cogent and convincing evidence before the

trial Court where the accused was facing up a trial and

he being the Government servant the trial Court has

failed to consider the evidence of P.W.1 in respect of

the allegation made against the accused in Ex.P.1 and

also in respect of the demand and acceptance of

illegal gratification by the appellant being arrayed as

an accused, but the Special Court has failed to

appreciate the evidence on record and accepted an

unnatural theory put-forth by the prosecution.

10. In the instant case, the domain vested

with the prosecution to facilitate worthwhile evidence

to secure the conviction, but the prosecution has

failed to facilitate the evidence in respect of cogent,

convincing and satisfactory evidence to prove the

demand and acceptance of bribe from the

complainant. Mere acceptance of tainted amount by

the accused/appellant said to have been seized by the

Police Inspector, Lokayukta P.S., Vijaypaura being

the investigating officer who conducted the trap

mahazar in the presence of the mahazar witness and

also drew the trap mahazar cannot be a ground to

hold that the prosecution has proved the guilt of the

accused beyond all reasonable doubt. On this count

alone, the impugned judgment of conviction and order

of sentence requires to be set aside.

11. The second limb of argument advanced by

the learned counsel for the appellant is that the

prosecution has failed to prove the official demand as

even narrated in the complaint made by the

complainant, under such circumstances, the

presumption cannot be raised and the burden does

not shift upon the accused even then the accused has

given plausible explanation in the instant case, but

the trial Court has failed to take note as well to

consider his explanation which was obtained by the

investigating officer at the time of investigation.

12. Learned counsel for the appellant further

submitted that the prosecution has suppressed the

genuineness of the case and they have not come

before the Court with clean hands alleging that the

accused was demanding and accepted bribe as

narrated in the complaint made by P.W.1 and this

complaint made by approaching the Police Inspector,

Lokayukta P.S., Vijaypaura and mere because receipt

of a complaint, a criminal law was set into motion by

recording FIR, but the domain vested with the

prosecution to prove the guilt of the accused, but their

evidence suffers from full of material contradiction and

also omission which cuts the route of the prosecution

case, but the same has not been appreciated by the

trial Court in a proper prospective. Therefore, the

impugned judgment requires to be revisited and re-

appreciated, if not, the accused who is the gravamen

of the accusation would be the sufferer and

miscarriage of justice would arise on him. The

evidence of P.Ws.1 and 8 inclusive of evidence of

P.W.11, being investigating officer is not appreciated

properly in a proper prospective and the trial Court

has also failed to appreciate the evidence of D.W.1

inclusive of contradictory statement of P.W.1 which

marked at EX.D.1, even according to incriminating

statement of the accused recorded as per Section 313

of Cr.P.C., the accused who has produced certain

documents for perusal as well as consideration, but

the trial Court has failed to appreciate the said

document produced by him, unless re-appreciation of

the evidence under this appeal and so also re-visit the

judgment of conviction and order of sentence, it is

naturally substantive miscarriage of justice would

cause to the accused. Therefore, under this appeal it

requires re-appreciation of the evidence where the

prosecution has to prove its case independently and

should not depend upon the weakness of the defence

or any lacuna on the part of the defence side in a

criminal justice delivery system.

13. Lastly, the learned counsel for the

appellant relied upon a judgment rendered by this

Court in Criminal Appeal No.843 /2015 dated

19.08.2021 whereby the presumption as under

Section 20 of Prevention of Corruption Act, 1988

which is having some pivotal role against the accused,

mere because the onus shifted on the accused in

terms of the rebutting of presumption, but unless

worthwhile evidence has been facilitated by the

prosecution, it cannot arise for acceptable of evidence

in securing the conviction.

14. In the aforesaid reliance relied upon the

learned counsel for the appellant, in

M.R.Purushottam Vs. State of Karnataka reported

in (2015) 3 SCC 247 held as under;

"7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by

the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj vs. State of Andhra Pradesh reported in 2014(4) Scale 81 is relevant and it is held as follows :

"8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of

corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."

8. The above decision is squarely applicable to the facts of the present case. When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused. The High Court was not correct in holding the demand alleged to be made by the accused as proved. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13(1)(d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside."

15. In R.P.S. Yadav Vs. C.B.I. reported in

(2015) AIR SCW 2828, wherein the Hon'ble

Supreme Court held as under;

"10. In fact, se do not find any such legally acceptable evidence either from P.W.3 or from the other so called independent witness P.W.6 or the shadow witness in order to show that the mandatory requirement for conviction under Sections 7 and 13(2) read with 13(1)(d) namely, the demand, acceptance and recovery was chronologically proved as against the appellant. In the light of, our above conclusion based on the

analysis of the evidence led before the Court, we are constrained to hold that the conviction imposed on the appellant by the trial Court as well as confirmation of the same by the High Court cannot be sustained."

16. In Ganapathi Sanya Naik Vs. State of

Karnataka reported in (2007) AIR SCW 5824, the

Hon'ble Supreme Court has held as under:

"Prevention of Corruption Act - Section 13 - Criminal P.C. (2 of 1974), Section 378 - Illegal gratification - Demand and acceptance - Proof - Accused alleged to have demanded money for giving certified copy of revenue record - Trap laid - Currency notes recovered from table of accused from beneath files - Plea that complainant had serious animosity towards accused and that currency notes had been put surreptitiously on his table - Plausible - Prosecution case itself stating that relevant document was handed over immediately - Defence plea that there was thus no occasion to make demand - Also plausible - Acquittal not liable to be interfered in appeal against acquittal."

17. These are all the reliances placed by the

learned counsel for the appellant and he contend that

the observations made by the Hon'ble Supreme Court

in the said decisions are squarely applicable to the

present case on hand and thus he seeks intervention

of this Court with the impugned judgment of

conviction and order of sentence rendered by the trial

Court and accordingly prays to allow the appeal and

set aside the impugned judgment of conviction and

order of sentence rendered by the trial Court and to

acquit the accused.

18. Controverted to the arguments advanced

by the defence counsel for the appellant/accused,

whereby the learned Special Public Prosecutor for

Lokayukta P.S., namely Sri Subhash Mallapur has

taken me through the evidence of P.W.1, who is the

author of the complaint at Ex.P.1 and also in his

presence as well as in the presence of shadow witness

who is examined as P.W.5 namely, Kiran Chandrakant

Patil in respect of the entrustment panchanama at

Ex.P.3 and the Trap mahazar at Ex.P.7 has conducted,

whereas, the substances in the FIR and the FSL report

at Exs.P.12 and 16, respectively as well as M.Os.3 and

4 in respect of samples phenolphthalein powder and

sample sodium carbonate powder prepared and right

hand of the accused was washed with the sodium

solution and so also the shirt belongs to the accused

marked at Ex.P.7 and more so M.O.9 tainted currency

of Rs.1000/- (500 x 1 and 100 x 5 notes) said to

have been seized from the possession of the accused

and the same has been stated in detail in the trap

mahazar at Ex.P.7, which is conducted by P.W.11

being the investigating officer, P.W.10 who is also the

investigating officer in part and who secured the

sanction order as per Ex.P.8 and laid the charge sheet

against the accused.

19. P.W.11 being the investigating officer

drawn the entrustment mahazar and also the trap

mahazar as per Exs.P.3 and Ex.P.7, respectively in the

presence of the panch witnesses in the instant case

P.W.5 being a shadow witness has been subjected to

examination on the part of the prosecution. During

the mahazar, the hand wash of the appellant being a

Government servant who had come into contact with

the tainted currency notes as per M.O.9 whereby

applied phenolphthalein powder and the hand wash of

the accused turned into pink in colour. Accordingly,

entrustment mahazar as per Ex.P.3 and the Trap

mahazar as per Ex.P.7, both the mahazars have been

conducted by P.W.11 being the investigating officer

and the fulcrum of Ex.P.3 and Ex.P.7 which have been

proved by the prosecution by examining P.W.5 who is

the shadow witness and who accompanied P.W.1 to

the office of the accused and their evidence found

corroborated with the evidence of P.Ws.10 and 11,

being the investigating officers whereby P.W.1 is the

author of the complaint but they are the prime

witnesses and accordingly the prosecution proved the

guilt of the accused whereby the accused being the

Government servant and demanded and accepted

bribe of Rs.1000/-, the tainted currency notes were

marked as M.O.9 and it is termed as bait amount, but

there is no enmity between the panch witnesses and

also the accused inclusive of evidence of P.W.5 being

the shadow witness who accompanied with the

complainant to the office of the accused where the

complainant examined as P.W.1 who was tendering

the tainted currency notes of Rs.1,000/- which

currency notes were marked as M.O.9 to the accused.

Even the defence counsel has subjected to cross-

examination those material witnesses, such as P.W.1

and P.W.5, who is shadow witness and P.W.8-

Mahadevappa Bheemanna Jevoor who is none other

than the father of the P.W.1 and coupled with the

evidence of P.W.10, who being the investigating

officer has conducted the investigation in part and has

secured the sanction order and laid the charge sheet

against the accused, but nothing worthwhile of

evidence has been facilitated to disbelieve the theory

of the prosecution. Therefore, the learned Special

Public Prosecutor for Lokayukta contended that the

trial Court has appreciated the evidence in respect of

the fulcrum of Ex.P.3 and Ex.P.7 through the evidence

of P.W.5, even at a cursory glance of those

Panchanama which indicates nothing finds for re-

appreciation of the evidence on record as contended

by the counsel for the appellant/accused, whereas

under this appeal there is nothing to be re-appreciated

to show the complainant who is examined as P.W.1

and also the entrustment and trap mahazars at Ex.P.3

and Ex.P.7, respectively and whereby examined

P.W.5 and in his presence conducted. Therefore, the

trial Court has rightly appreciated the evidence on the

part of the prosecution to prove the ingredients of

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

Section 13(2) of the Prevention of Corruption Act,

1988 with regard to the allegation made against the

accused and whereby demanding and acceptance of

bribe to do the official work i.e., in favour of the

complainant who is examined as P.W.1. The bribe

amount of Rs.1,000/- was found in possession of the

accused during the trap mahazar has been conducted

at Ex.P.7 in the office of the accused, the same has

been appreciated by the trial Court and the entire

evidence on record in a proper prospective relating to

proving of the guilt of the accused, therefore, the

evidence placed by the prosecution is reliable and

trustworthy and thus the prosecution has proved the

guilt of the accused by facilitating the worthwhile

evidence relating to ingredients of Sections 7,

13(1)(d) r/w Section 13(2) of the Prevention of

Corruption Act, 1988. But the entire case of the

prosecution even though relied upon the evidence of

P.Ws.1, 5 and 8 inclusive of evidence of P.W.10 and

P.W.11 the allegation made against the accused

narrated in a complaint at Ex.P.1 and so also the

entrustment mahazar at Ex.P.3 and trap mahazar at

Ex.P.7, has been conducted by P.W.11 who is the

investigating officer in part but the evidence on the

part of the prosecution as in toto does not arise for

interference with the impugned judgment of

conviction and order of sentence rendered by the trial

Court. On these premise, the learned Special Public

Prosecutor for Lokayukta in this appeal seeks

dismissal of the appeal being devoid of merits by

confirming the judgment of conviction and order of

sentence rendered by the trial Court.

20. It is in this context of the contention as

taken by the learned counsel for the appellant by

referring the evidence of PW-1 who is the author of

the complaint at Ex.P-1 and also in his presence and

inclusive of the presence of PW-5 that the

entrustment mahazar at Ex.P-3 in the office of the

Police Inspector, Lokayukta and so also in the office of

the accused Trap Mahazar at Ex.P-7 has been

conducted after success in the trap laid by the Police

Inspector of Lokayukta by led a team and whereby

also drawn trap mahazar by preparing sodium

carbonate solution wherein the fingers of the accused

being a Government Servant dipped into that solution

and said to have been washed, if he has come into

contact with the tainted currency notes and therein his

fingers and the solution of the hand fingers turned

into pink in colour. Though all these contentions have

been made by the learned Special Public Prosecutor

for Lokayukta and so also counter made by the

counsel for the appellant/accused, however it

requires to be reference of the judgment of Hon'ble

Supreme Court in the case of State of Madhya

Pradesh vs. Ram Singh reported in (2000) 5 SCC

88 whereby it has been meticulously observed that

corruption is termed as a plague which is not only

contagious but if not controlled, spreads like a fire in a

jungle. Its virus is compared to HIV leading to AIDS

being infectious disease. It has also been termed as a

royal thievery. The socio-political system exposed to

such a dreaded communicable disease is likely to

crumble under its own weight. Corruption is opposed

to democracy and social order, being not only anti-

people, but aimed and targeted against them. It

affects the economy and destroys the cultural

heritage. Corruption is eating into the vitals of our

country. Whereas, in this appeal, it requires for

commanding the evidence of PW-1, who is the author

of the complaint and whereby he has filed complaint

at Ex.P-1 and this complaint is filed for the grievance

of his father who is examined as PW-8 being a

Government Servant and also retired from service and

for the retiral benefit had approached the accused who

was working as PDO. The prosecution case rests upon

the circumstantial evidence in respect of the pre-trap

mahazar at Ex.P-3 and Ex.P7 the trap mahzar. After

receipt of a complaint at Ex.P-1 by PW-11, criminal

law was set into motion by recording the FIR and

thereafter securing the panch witnesses and in their

presence pre-trap mahazar Ex.P-3 by demonstration

has been held by PW-11 in his office and also the

team has been led by him in the office of the accused

whereby PW-1 has been accompanied with the

accused and the accused demanded and accepted the

bribe of Rs.1,000/- which is marked as M.O.9. These

are all the theory put forth by the prosecution by

subjecting the witnesses to examination and

facilitating the evidence for consideration.

21. PW-1 who is the author of the complaint

and more so according to instruction he went inside

the office of the accused whereby PW-5 who is a

shadow witness who accompanied with him. A cursory

glance of the evidence of these witnesses and in

respect of the accused demanded and accepted bribe

of Rs.1,000/- which is marked as M.O.9 but it has

been appreciated by referring the pre-trap mahazar at

Ex.P-3 and trap mahazar at Ex.P-7 inclusive of

sanction order as per Ex.P-8 and the same has been

secured by PW-10 and whereby referring the contents

of the FIR at Ex.P-12 and so also the other material

which find place in record has been forwarded to the

authorities and whereby accorded sanction. Whereas

Sections 19 and 20 of the Prevention of Corruption Act

relate to according sanction for prosecution and

presumption of law. Subsequent to demand and

acceptance for bribe amount M.O.9 PW-1 complainant

has extended a signal as already been instructed by

PW-11 Investigating Officer and accordingly the team

members led by PW-11 Police Inspector of Lokayukta

Vijayapur swung in the operation by entering into the

office of the accused and whereby succeeded in

trapping the accused as contended by the

presumption. The domain vested with the prosecution

to prove the guilt of the accused that the accused

demanded and accepted the bribe. But PW-1 who is

the author of the complaint at Ex.P-1 and the

evidence of PW-5 who is a shadow witness and

evidence of PW-8, PW-10 and PW-11, coupled with

contention in Ex.D1, the contradictory statement of

PW-1 and on close scrutiny of their evidence which

runs contrary to each other and even the fulcrum of

the entrustment mahazar at Ex.P-3, trap mahazar

Ex.P-7, are said to have been conducted by the

Investigating Officer PW-11 in the presence of the

panch witnesses. Whereas on close scrutiny of the

evidence of the prosecution Insofar as demand and

accept and also recovery of the tainted amount M.O.9

the panch witnesses in respect of Exs.P3 and P7 but

their evidence requires to be re-appreciated in a

proper perspective, if not certainly there shall be some

substantial miscarriage of justice would cause to the

accused who is a gravamen of the accusation.

22. Mere because recovery of the tainted

amount from the accused and more so described the

currency notes in Ex.P7 of the trap mahazar and the

entrustment mahazar Ex.P-3 conducted by the

Investigating Officer in his office in the presence of

the panch witnesses and also led the team member to

the office of the accused, but it requires to be

established by the prosecution by facilitating the

worthwhile evidence and the evidence must be

positive, consistent and acceptable. Whereas under

the criminal justice delivery system, the prosecution

should prove the case against the accused beyond all

reasonable doubt. Even any doubt arises, the benefit

of doubt should be accrued on the accused alone.

23. In the instant case though the demand,

acceptance and recovery and these three aspects are

important elements, it should be established by the

prosecution without creating any doubt. If any doubt

arises in the theory of the prosecution as put forth,

the clouds of doubt should always be in favour of the

accused alone. But though there shall be settled

principles of law that the demand of illegal

gratification sine quo non to constitute an offence

under the Prevention of Corruption Act. Whereas

mere recovery of the tainted currency notes from the

accused is not sufficient to secure the conviction

unless there shall be worthwhile evidence to prove the

demand and acceptance of bribe or to show that the

money was taken voluntarily by the accused. These

are all the important elements on the part of the

prosecution has to prove the guilt of the accused

insofar as the offence under Sections 7, 13 (1) (d)

read with Section 13 (2) of the Prevention of

Corruption Act .

24. It is the domain vested with the prosecution

to prove the guilt of the accused by facilitating

worthwhile evidence. But mere because subjected to

examination of several witnesses, it cannot be held to

prove the case against the accused beyond all

reasonable doubt, but counting of evidence is

important rather than the count of witnesses under

the criminal justice delivery system, that is to see

quality of the evidence and not quantity of the

witnesses. In the instant appeal it requires for re-

appreciation of the evidence of PW-1 who is the

author of complaint Ex.P-1 and so also the fulcrum of

Ex.P-3 pre-trap mahazar and fulcrum of trap mahazar

Ex.P-7. But the entire case of the prosecution

revolves around these two mahazars and so also

revolves around the evidence of PW-1 in respect of

complaint at Ex.P-1 inclusive of the evidence of PW-10

and PW-11.

25. On close scrutiny of the evidence of these

witnesses under this appeal it must be positive,

consistent and acceptable. Even if any doubt arises in

the case of the prosecution, certainly the benefit of

doubt should accrue on the accused alone. In the

instant case though prosecution has relied upon the

evidence of PW-1 who is the author of the complaint

at Ex.P-1 and so also the evidence of PW-5 who is the

shadow witness and in his presence drew the pre-trap

mahazar at Ex.P-3 and also trap mahazar at Ex.P-7

drawn by PW-11 Investigating Officer. But on a

cursory glance of the evidence of these witnesses on

the part of the prosecution and so also on close

scrutiny, there shall be some clouds of doubt. When

there is clouds of doubt arises in a theory of the

prosecution as well evidence, the benefit should be

accrued on the part of the accused alone, if not, the

gravamen of the accusation would be the sufferer.

26. Therefore, in terms of the aforesaid reasons

and findings, I am of the considered opinion that the

prosecution has failed to establish the guilt of the

accused by putting forth the worthwhile evidence, as

well beyond all reasonable doubt relating to the

ingredients of the offences punishable under Sections

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

of Corruption Act. Consequently, the accused/

appellant deserves for acquittal. Accordingly, I

proceed to pass the following:

ORDER

The appeal preferred by the appellant/accused

under Section 374 (2) of Cr.P.C. is hereby allowed.

Consequently, the judgment of conviction and order of

sentence rendered by the trial Court in Special Case

(LOK) No.5/2013 dated 09.07.2015 is set aside, and

accused is hereby acquitted of the offences punishable

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

(2) of the Prevention of Corruption Act, 1988, which

are leveled against him.

Bail bond, if any, executed by the appellant/

accused, shall stand cancelled.

SD/-

JUDGE

BL/swk