H Nagaraj S/O Hanumanthappa vs The State Of Karnataka
2022 Latest Caselaw 7286 Kant

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                                                  CRL.A No. 2838 of 2012


                      IN THE HIGH COURT OF KARNATAKA,
                               DHARWAD BENCH

                    DATED THIS THE 23RD DAY OF MAY, 2022

                                     BEFORE

                    THE HON'BLE MR JUSTICE V.SRISHANANDA

                    CRIMINAL APPEAL NO. 2838 OF 2012 (C-)

            BETWEEN:

                H. NAGARAJ S/O HANUMANTHAPPA,
                AGE: 20 YEARS, OCC: LICENSED SURVEYOR,
                OFFICE OF ASSISTANT DIRECTOR,
                SURVEY DEPARTMENT, BELLARY.
                                                             ...APPELLANT

            (BY SRI S.H.MITTHALKOD, ADV.)

            AND :

                THE STATE OF KARNATAKA,
                RPTD BY POLICE INSPECTOR,
                KARNATAKA LOKAYUKTA, BELLARY,
                THROUGH SPECIAL PUBLIC PROSECUTOR,
                HIGH COURT OF KARNATAKA,
                CIRCUIT BENCH, DHARWAD.
                                                           ...RESPONDENT

            (BY SRI SANTOSH B.MALAGOUDAR, ADV.)

MANJANNA
E                THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
            SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER OF
            CONVICTION AND SENTENCE DATED 28.08.2012 PASSED IN
Digitally   SPL.CASE NO.41/2009 BY THE SPL. JUDGE, BELLARY.
signed by
MANJANNA
E                 THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
            THIS DAY, COURT DELIVERED THE FOLLOWING:
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                                             CRL.A No. 2838 of 2012


                           JUDGMENT

Heard the learned counsel Sri S.H.Mittalkhod and

learned counsel Sri Santosh B.Malagoudar appearing for

the parties.

2. This appeal is filed by the accused who has

been convicted by the learned Special Judge in Spl.Case

No.41/2009 on the file of Principal Sessions Judge and

Special Judge, Bellary by judgment dated 28.08.2012 and

sentenced to undergo simple imprisonment for a period of

two years and to pay fine of Rs.5,000/- for the offence

punishable under Section 7 of the P.C. Act, 1988

("P.C.Act" for short) and sentenced to undergo simple

imprisonment for a period of 3 years and to pay fine of

Rs.10,000/- for the offence punishable under Section

13(1)(d) read with Section 13(2) of P.C.Act.

3. Brief facts of the case are as under:

The prosecution alleges that on 25.11.2008 at about

10.30 a.m., the complainant by name Sri

CRL.A No. 2838 of 2012

P.S.Ghanamallanagouda gave a written complaint to the

Karnataka Lokayukta Police, Bellary stating that he has

filed an application in the office of the Surveyor, Bellary

seeking for measurement of his land bearing Sy.No.33 D/1

measuring 1 acre 01 gunta and to prepare a sketch. On

24.11.2008 he visited the Taluk Office and met the

accused who was working as a surveyor and requested

him to hand over the survey sketch. At that juncture, the

accused demanded illegal gratification in a sum of

Rs.2,000/- for the purpose of discharging his official duty

i.e., for issuance of the survey sketch. The complainant

requested the accused to reduce the bribe amount, but

accused insisted for payment of Rs.2,000/-. The

complainant was not willing to pay the said illegal

gratification, therefore, approached the Lokayukta Police.

4. The Lokayukta Police after verifying the veracity

of the allegations made by the complainant, secured two

panch witnesses for the purposes of intended raid/trap.

Thereafter, the contents of the complaint were explained

CRL.A No. 2838 of 2012

to the panch witnesses and trap team was formed by the

investigating agency. After demonstrating the reaction of

phenolphthalein powder with the sodium carbonate

solution, the investigating officer, drafted experimental

mahazar. Four currency notes of Rs.500/- denomination

were secured from the custody of the complainant and

phenolphthalein powder was smeared on the said currency

notes and instruction was given to the complainant to

keep the currency notes with him and hand over the same

when the accused demands the illegal gratification. The

shadow witness was directed to accompany the

complainant and carefully watch the activities that would

take place while the complainant is handing over the

tainted money to the hands of the accused. These aspects

were also incorporated in the entrustment mahazar.

5. After so instructing, the trap team comprising of

pancha witnesses, complainant and other sub staff of the

Investigating Officer proceeded to the office of the

accused. As per the instruction, the complainant and

CRL.A No. 2838 of 2012

shadow witness went inside the office of the accused. Co-

panch and other members of the trap party were waiting

for the designated signal. When the complainant entered

the office of the accused and demanded for issuance of

survey sketch on demand by accused, the complainant

handed over the tainted currency notes to the hands of

the accused which was taken by the accused and kept in

his shirt pocket.

6. After so handing over the tainted money, the

complainant gave the pre-designated signal to the raid

party.

7. Immediately the raid party came to the office of

the accused and enquired the accused about the receipt of

the tainted money. Accused initially pleaded ignorance and

later on he took out the tainted money from the shirt

pocket, which was seized by the head of the raid party in

the presence of panch witnesses. Subsequently colour test

was conducted and the colour test stood positive.

Immediately accused was also arrested and his

CRL.A No. 2838 of 2012

explanation was taken; the relevant documents were

seized. All these aspects were reduced into trap mahazar.

Later, accused was produced before the Special Judge. On

such production, the accused was remanded to judicial

custody.

8. The investigating agency completed the

investigation and filed the charge sheet against the

accused for the offences punishable under Sections 7 and

13(1)(d) read with section 13(2) of the P.C.Act.

9. Thereafter, the presence of the accused was

secured who was on bail and charge was framed. Accused

pleaded not guilty and therefore trial was held.

10. In order to establish the case of the

prosecution, the prosecution examined in all eight

witnesses as PWs.1 to 8; and relied on documentary

evidence which were exhibited and marked as Exs.P-1 to

P-33. Prosecution also marked 13 material objects as

MOs.1 to 13.

CRL.A No. 2838 of 2012

11. After conclusion of the prosecution evidence,

the accused statement as contemplated under Section 313

of Cr.P.C was recorded, wherein accused has denied all the

incriminatory circumstances; but furnished written

submissions as contemplated under Section 313 (5) of

Cr.P.C., which was taken on record.

12. However, on behalf of the accused there was no

defence evidence placed.

13. Thereafter, the learned Trial judge heard both

the parties and by judgment dated 28.08.2012, passed an

order of conviction and sentenced as aforesaid. The said

judgment, which is under challenged before this Court in

this appeal by the accused.

14. In the appeal memorandum, the following

grounds have been raised by the appellant.

• That the impugned judgment and order of the conviction and sentence of the appellant for the offence punishable under section 7 and 13(1) (d) R/W 13 (2) of Prevention of Corruption Act, is contrary to law, facts, evidence on record and as such the same is liable to be set aside.

CRL.A No. 2838 of 2012

• The Court below ought to have held that the prosecution has not proved the guilt of the accused beyond all the reasonable doubt and ought to have acquitted the appellant.

• It is submitted that, in order uphold the guilt under section 7 of the P.C Act there must be demand and acceptance of the illegal gratification and such demand performance or must be coupled with the non performance of any official favour. In the absence of the any of the condition mere possession or acceptance of tainted currency notes is not sufficient to convict the accused person under section 7 of the Act as held by the Hon'ble Apex Court in the case of Banarsi Dass V/s. State of Haryana reported in AIR 2010 SC 1589.

• It is submitted that, trial court has failed to consider the fact that, there was not work pending with the appellant when the alleged amount was paid as he had discharged his part of duty. According to the material collected by the prosecution appellant had already submitted the report to the authority concerned for necessary further action. It is also clear from the very prosecution case that appellant is not the issuing authority of the city survey map. Therefore there is no nexus to the story of the complainant and the complaint is filed just to harass the accused/appellant.

• Further it is submitted that, the accused is a temporary licensed surveyor, his license will be issued as per the provisions of the Section 46 of the Karnataka Land Revenue Act and at that point of time the license of the appellant was cancelled. Therefore he was not a public Servant and also he does not fall within the definition of Public servant as defined under the Karnataka Lokyuktha Act.

CRL.A No. 2838 of 2012

Therefore the said charge under the provisions of prevention of Corruption Act do not apply to the Appellant.

• Further it is submitted that, as per the provisions of Karnataka Land Revenue Rules if any surveyor who has been appointed as licensed Surveyor receives any extra amount or if he contravenes the contrition of the license his license will be cancelled as per the conditions of contract.

• Further it is submitted that, the court below committed an error by relying much on the recovery of the tainted money from the appellant and over looked the law laid down by the Hon'ble Appex Court in C.M.Girish Babu V/S CBI Cochin, High Court of Kerala reported in 2009 (2) Criminal Court Cases Hon'ble 620 and also the law laid down by this Court in State of Lokayuktha Police, Mandya V/s. K.M Gangadhar reported 2008 (2) KCCR 985.

• It is submitted that, the proceedings initiated by the lokayuktha police, Bellary is bad in law as there was no sanction to prosecute the appellant even presuming for the sake of argument that the accused falls within the definition of public servant. On this ground alone the appeal liable to be allowed.

• It fails is submitted that, to consider the the court below has fact that, the accused/appellant is not the person in charge to issue the sketch. The appellant has to submit the sketch to the issuing authority. In the Instant case the say of the complainant that, appellant demanded the bribe amount to give Sketch be accepted.

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CRL.A No. 2838 of 2012

• It is submitted that, the court below has failed to consider the admission given by the Complainant (PW-1), PW-2 Pancha witness who had accompanied the Complainant at the time of Trap who have clearly admitted that the appellant has intimated about completion of the work by him and asked the complainant to collect the same from Thashildar. Therefore the appellant was having any pending work to show official fevour not and to demand bribe amount. Thus the accused ought to have been acquitted.

• Further it is submitted that, it is the case of the prosecution that, the complainant had filed a written complainant as per Ex.F. 26, but the complainant denies his hand writing. Therefore it creates doubt about the case of the prosecution, thus the appellant is entitled for the acquittal.

• That, the observation made and conclusions drawn by the trial Court are all incorrect and name Court. the requires the interference of this Hon'ble The court below has failed to appreciate materials erroneous on record and has arrived conclusion of conviction and which is liable to be reversed."

15. Reiterating the above grounds, learned counsel

for the appellant Sri S.H.Mittalkhod vehemently contended

that as on the date of the trap, the work of complainant

was already completed and the complainant wanted the

sketch to be handed over to him directly by the accused,

which is impermissible as per the procedure and therefore,

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CRL.A No. 2838 of 2012

the accused refused to hand over the sketch to the hands

of the complainant. Being enraged by such conduct of the

accused, the complainant filed a false complaint against

the accused and therefore, the trap is a motivated trap

and there was no scope for demand of illegal gratification

by the accused in-as-much-as, on the date of trap the

work had already been concluded and therefore, all

ingredients of Sections 7 and 13(1)(d) and 13(2) of the

P.C.Act are not attracted and sought for allowing the

appeal.

16. He further contended that the prosecution failed

to prove the demand and acceptance of illegal gratification

with positive and cogent evidence on record and thus

sought for allowing the appeal.

17. He further contended that the explanation

offered by the accused at the time of trap as well as the

statement given by the accused as contemplated under

Section 313(5) of Cr.P.C., is totally ignored by the learned

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CRL.A No. 2838 of 2012

trial judge while passing the impugned judgment and thus

sought for allowing the appeal.

18. Alternatively he contended that in the event of

this Court maintaining the conviction, have taken note of

the fact that the accused has been removed from the

services, the sentence ordered by the learned Trial Judge

may be reduced.

19. Per contra, learned counsel Sri Santosh

B.Malagoudar supports the impugned judgment by

contending that the prosecution case stands proved as the

complainant and the shadow witness have supported the

case of the prosecution. The other ocular evidence on

record corroborates the oral testimony of the complainant

and shadow witness.

20. He further contended that, as on the date of the

trap, the work was still pending with the accused in as

much as the sketch was not sent to the higher officials for

the purpose of dispatch and therefore the contention taken

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CRL.A No. 2838 of 2012

on behalf of the appellant that there was no work pending

as on the date of trap cannot be countenanced and

therefore the prosecution has successfully established all

ingredients to attract the offences punishable under

Sections 7 and 13(1)(d) read with section 13(2) of the

P.C.Act and thus sought for dismissal of the appeal.

21. In respect of alternate submission is concerned,

learned counsel for the respondent contended that, mere

dismissal of the accused from the service itself is not a

mitigating factor to reduce the sentence which has been

appropriately passed by the learned trial judge and thus

sought for dismissal of the appeal in toto.

22. In view of the rival contentions the following

points would arise for consideration.

1. Whether the prosecution is successful in establishing all the ingredients to attract the offences alleged under Sections 7 and 13(1)(d) read with section 13(2) of the P.C.Act?

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CRL.A No. 2838 of 2012

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

3. Whether the sentence is excessive?

23. Regarding Point Nos.1 & 2 :- In order to

establish the offences alleged against the accused, the

prosecution has relied on oral testimony of eight

witnesses, who have been examined as PWs.1 to 8.

24. Among the eight witnesses, PW.1 is the shadow

witness. He deposed before the Court that as per the

instructions of the investigating officer, he visited the

office of the Lokayukta on 25.11.2008. He was made

aware of the contents of the complaint and was also made

aware of the reaction of phenolphthalein powder with the

sodium carbonate solution and he deposed about the

contents of experimental mahazar and trap mahazar. He

further deposed that on 12.45 p.m., on the same day,

himself, the complainant and another pancha witness by

name Shekharappa went to the office of Lokayukta. He

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CRL.A No. 2838 of 2012

further deposed that, as per the instructions, himself and

the complainant went inside the Taluk office and accused

was found in the chambers of one Hulugappa. The

complainant enquired about the sketch and at that

juncture, the accused demanded sum of Rs.2,000/-.

Immediately, the complainant handed over the tainted

currency notes which were taken by the accused in his

right hand and he kept in his shirt pocket.

Thereafterwords, he told the complainant that, he would

hand over the sketch to the taluk office. Immediately the

complainant and shadow witness came outside and gave

pre-designated signal by taking out the spectacle and

wiping the same to the shirt. On following the said signal,

the raid party immediately entered the office of the

accused and they got introduced themselves to the

accused. He also deposed about the tainted currency notes

being seized by the Lokayukta police and colour test being

conducted and also arrest of the accused. He further

deposed about drafting of trap mahazar and explaining the

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CRL.A No. 2838 of 2012

contents of the same and obtained the signature on the

trap mahazar. In his cross-examination, the suggestion

made to the witness that work had already been

completed by preparing the sketch being admitted, no

other material is elicited by the defence so as to disbelieve

the oral testimony of PW-1.

25. PW.2 is the complaint. He deposed about the

complaint averments and also about the experimental

mahazar and trap mahazar. He specifically deposed about

work pending with accused, demand of illegal gratification

and the handing over of Rs.2,000/- tainted currency to the

hands of the accused as on the date of trap and accused

keeping the same in his shirt pocket.

26. He further deposed about the seizure of the

tainted currency, colour test, arrest of the accused and

drafting of trap mahazar and identifying the signature on

the mahazar.

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CRL.A No. 2838 of 2012

27. PW.2 in his cross-examination admits that as on

the date of trap, the sketch was made ready by the

accused. However, he denies the suggestion that he has

filed a false case against the accused for not handing over

the sketch to him directly.

28. PW.3 is the Supervisor, working in the Taluk

Office, Ballari. He was a co-worker of the accused. He

deposed about the procedure to be followed for surveying

the land and for issuing the sketch. His evidence is formal

in nature.

29. PW.4 is the Tahasildar, who deposed about the

accused that he was working as a contract surveyor in the

Taluk Office, Ballari and he also deposed about the

procedure for conducting a survey. In his cross-

examination, he has admitted that there is no fixed salary

for the accused, but on every application for conducting

the survey a sum of Rs.300/- could be paid as

remuneration.

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CRL.A No. 2838 of 2012

30. PW.5 is the FSL Officer. He deposed about the

receipt of the material objects for chemical examination

and thereafter, he examined the same and gave the report

by specifically mentioning that, the articles contained

sodium carbonate and phenolphthalein. No useful material

is elicited in his cross-examination to disbelieve the case of

prosecution.

31. PW.6-Syed Aktar Mohiddin who is the PWD

Engineer who prepared spot sketch and same was marked

as per Ex.P.25. There is no much dispute about Ex.P.25.

32. PW.7 is the Head Constable who accompanied

as part of the raid party, who deposed about the

experimental mahazar and trap mahazar and also

assisting the investigating officer in the trap and the

subsequent investigation. His evidence is also formal in

nature.

33. PW.8 is the investigating officer, who is the

head of the raid party. He deposed about the receipt of the

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CRL.A No. 2838 of 2012

complaint, verification of the complaint averments,

arranging for the trap, securing the mahazar witnesses,

conducting the experimental mahazar, conducting the trap

and arrest of the accused, seizure of the documents from

the Tahasildar's Office and filing of the charge sheet.

34. In his cross-examination suggestions made to

him that he has filed a false charge sheet and there was

no work pending as on the date of trap is denied by him.

He also denied that his investigation was perfunctory in

nature.

35. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant for

recording an order of acquittal by allowing the appeal.

36. As could be seen from the above, the

complainant and the shadow witness have supported the

case of the prosecution in toto. Tahasildar and co-surveyor

have specifically deposed before the Court as to the

procedure has to be adopted for conducting a survey.

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CRL.A No. 2838 of 2012

37. There is no dispute that, an application came to

be filed by the complainant for measuring the land bearing

Sy.No.33D/1 measuring 1 acre 01 gunta and to prepare a

sketch. Admittedly, the survey has been conducted by the

accused and who worked as a contract surveyor in the

Taluk Office, Ballari. Therefore, one of the important

ingredients to establish the offence alleged against

accused that there was a work pending with the accused

as on the date of the trap is sufficiently established by the

prosecution. The other ingredients namely the colour test,

the demand and the acceptance is also established by the

evidence of PWs.1 and 2 coupled with the evidence of

Investigating Officer and the Police Constable who

accompanied with the Investigating Officer.

38. The accused has furnished his explanation at

the time of trap as well as while recording the statement

under Section 313(5) of Cr.P.C., which reads as follows :

"DgÉÆæ ºÉýPÉ

25.11.2008 gÀAzÀÄ ²æà WÀ£ª À ÄÀ ®è£U À ËqÀ EªÀgÄÀ ¸ÀªðÉ ¸ÉZ Ì ï gÉr DzÀ §UÉÎ «ZÁj¸À¯ÁV gÉr DVzÉAiÉÄAzÀÄ w½¹ vÀº¹ À ¯ÁÝgïgÀªg À À

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CRL.A No. 2838 of 2012

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§¼Áîj DgÉÆævÀ ¢£ÁAPÀ: 28.08.2022

39. As could be seen from the above explanation,

the defence that is taken by the accused is that as on the

date of trap, the work had already been completed and

there was no procedure to hand over the sketch directly

and having explained the same to the complainant,

complainant got enraged and filed a false complaint.

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40. In this regard learned counsel for appellant

drew the attention of this Court to the cross-examination

of PW2/complainant wherein he has clearly admitted that

as on the date of trap, sketch was already made ready.

41. In reply Sri Santosh B.Malagoudar, learned

counsel vehemently contended that it is not the

preparation of the sketch which would be construed as

completion of the work, but it would carry the accused for

having forwarded the same to the superior officers. In this

regard, he clearly relied on complaint averments as well as

oral testimony of the PW2, it is evident about the seizure

of the tainted currency, colour test, arrest of the accused

and drafting of trap mahazar and identifying the signature

on the mahazar.

42. When the complainant demanded for issuance

of survey sketch, the accused insisted for illegal

gratification of Rs.2,000/- and infact, the accused

accepted the trapped amount. As such this Court is of the

considered opinion that as on the date of trap, there was

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CRL.A No. 2838 of 2012

no work pending cannot be countenanced in law. Further

the material evidence available on record and documents

seized by the investigation officer from the custody of the

accused, clearly establishes that he has not forwarded the

same to his official superiors. Why the accused kept the

prepared sketch with him, without handing over to the

official superiors is not forthcoming on record. There is no

explanation offered by the accused either while recording

the accused statement under Section 313 Cr.PC. or when

statement was recorded soon after the trap. These

aspects made the contentions taken on behalf of the

accused, there was no work pending cannot be

countenanced in law. Thus prosecution has successfully

established the demand and acceptance of illegal

gratification being answered in the positive in view of the

trap mahazar as well as report. This Court is of the

considered view that prosecution has successfully

established the demand of illegal gratification by the

accused and acceptance of the same by the accused to the

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CRL.A No. 2838 of 2012

oral and documentary evidence on record. Accordingly,

Point No.1 and 2 are answered in affirmative and negative

respectively.

43. Regarding Point No.3 :- Sri S.H.Mitthalkod,

learned counsel vehemently contended that the accused

working as a contract surveyor and whether at all he

would be considered as a public servant. The order passed

by this Court in Criminal Petition No.10853/2011 that

licenced surveyors appointed under Section 18-A of the

Karnataka Land Revenue Act, are covered under the

definition of public servants found under Section 2(c) (viii)

of the P.C. Act and thereafter the accused has been

discharged from contract work and therefore his family

has suffered great loss. The order of sentence passed by

the trial Court may be reduced.

44. Per contra, learned counsel appearing for

Lokayukta opposed the said submission stating that the

act committed by the accused is to be taken note and if

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CRL.A No. 2838 of 2012

mercy is shown, it would send wrong message to the

society.

45. This Court perused the material on record

taking note that accused has been discharged from the

service soonafter the above trap maintaining sentence of 2

years simple imprisonment under Section 7 of PC Act and

reduce the sentence under Section 13(1)(d) r/w Section

13(2) of the P.C. Act from three years to two years. The

rest of the sentence is unaltered. Accordingly, Point No.3

is answered partly in the affirmative and pass the

following:

ORDER

(i) Appeal is allowed in part.

(ii) Consequently, while maintaining conviction of the accused for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, the order of sentence passed by the learned Sessions Judge/Special Judge in Special Case No.41/2009 is hereby modified to 2 years for the offence punishable under

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Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act. Rest of the sentence stands unaltered.

(iii) Let the copy of this judgment along with trial Court records be transmitted to the trial Court forthwith.

(iv) Thereafter the learned Special Judge shall issue modified conviction warrant. The accused is directed to surrender before the Special Court/trial Court on or before 25.06.2022 for remaining part of the sentence.

(v) Ordered accordingly.

Sd/-

JUDGE

EM/CLK