Karnataka High Court
Shrinivas Suresh Rao Subnis vs The State Of Karnataka on 26 May, 2022
Bench: V.Srishananda
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CRL.A No. 2646 of 2012
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 26TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO. 2646 OF 2012 (C)
BETWEEN:
SHRINIVAS SURESH RAO SABANIS,
AGE: 30 YEARS,
OCC: VILLAGE ACCOUNTANT,
HIREBAGEWADI, TQ and DIST: BELAGAVI.
...APPELLANT
(BY SRI. B.S.SANGATI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
POLICE INSPECTOR, KARNATAKA LOKAYUKTA,
BELGAUM, R/BY THE SPECILA PUBLIC PROSECUTOR,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI. ANIL KALE, SPECIAL P.P.)
MANJANNA
E THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF
CR.P.C. SEEKING TO CALL FOR RECORDS IN SPECIAL CASE
Digitally NO.107/2010, ON THE FILE OF THE SPECIAL JUDGE (IV ADDL.
signed by SESSIONS JUDGE) AT BELGAUM AND SET-ASIDE THE
MANJANNA E JUDGMENT OF CONVICTION AND SENTENCE PASSED ON THE
APPELLANT DATED 16.04.2012 AND SET THE APPELLANT AT
LIBERTY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 2646 of 2012
JUDGMENT
1. Heard Sri B.S.Sangati, learned counsel for the
appellant and Sri Anil Kale, learned Special Public Prosecutor
for respondent - State and perused the records.
2. This Appeal is filed by the accused challenging the
Judgment of conviction and order of sentence dated
16.04.2012 passed in Spl.Case No.107/2010 on the file of IV
Additional Sessions and Special Judge (PCA) at Belagavi.
3. Brief facts of the case are as under:
A complaint came to be lodged by Sri Avinash
Shivaputrappa Aralikatti to Lokayukta Police, Belagavi on
02.03.2009. Based on which, Lokayukta Police registered a
case in Crime No.2/2009 for the offence punishable under
Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act,
1988 (hereinafter referred to as 'PC Act', for brevity). The
complaint averments reveals that the complainant owns a land
in Hirebagewadi village bearing Sy.No.401/2 measuring 3 acres
9 guntas and in 2004, the elder brother of the complainant by
name Eranna Shivaputrappa Aralikatti had purchased the same.
Thereafter on 29.12.2008, half of the said land measuring 1
CRL.A No. 2646 of 2012
acre 24 guntas was gifted in favour of the complainant by a
registered gift deed. Thereafter, the complainant gave an
application to the Taluka Office for transfer of revenue entries
in the name of the complainant. The said application was
received and inserted 'J'. 'J' form was also received by the
Taluka Office from the Sub-Registrar's Office.
4. In order to find out the fate of the said application,
the complainant contacted the appellant herein. In that regard,
the accused-appellant demanded Rs.3,000/- as illegal
gratification. On bargain, it was freezed to a sum of Rs.2,000/-.
Same was refused by the complainant and he approached
Lokayukta Police and lodged a complaint.
5. The Lokayukta Police after getting confirmation
about the veracity of the complaint averments secured two
independent government servants to act as panchas for the
intended trap. The Lokayukta Police also made preparations for
the intended trap and obtained Rs.3,000/- containing four
currency notes of Rs.500/- denomination from the complainant
and they noted the numbers of the said currency notes and
smeared phenolphthalein powder on the currency notes and
CRL.A No. 2646 of 2012
demonstrated its reaction with sodium carbonate solution in the
presence of the panchas and experimental mahazar was
conducted in the office of the Lokayukta. The signatures of the
panch witnesses and complainant were taken to the
experimental mahazar. Complainant and shadow witnesses
were instructed to approach the accused and on demand to
handover the tainted currency notes to the accused and give a
pre-designated signal to the raid party. Accordingly, raid party
proceeded in the government jeep to the office of the accused
at Belagavi and they came to know that the accused had gone
to Hirebagewadi. Thereafter the raid party came to
Hirebagewadi by then the accused had come back to Belagavi.
On further contact with the accused, accused told that he will
be meeting the complainant in Hotel Pranam at Belagavi.
Accordingly, the complainant and shadow witness met the
accused and gave the currency notes, which the accused kept
in his shirt pocket. Thereafter, pre-designated signal was given
to the rest of the members of the raid party and immediately
raid party came to the hotel and apprehended the accused. On
enquiry, he told that the tainted currency is in shirt pocket and
the same was seized by the raid party. Colour test was
CRL.A No. 2646 of 2012
conducted and the colour test stood positive. The details of the
raid has been reduced into writing in the form of trap mahazar
and thereafter, the accused was arrested and produced before
the Special Judge and from there, sent to judicial custody. The
investigation agency carried out the investigation thoroughly
and thereafter, charge sheet came to be filed against the
accused for the offences punishable under Sections 7, 13(1)(d)
r/w Section 13(2) of the P.C. Act.
6. Presence of the accused was secured before the
Special Court and a charge sheet was framed for the aforesaid
offences. Accused pleaded not guilty. Therefore, trial was held.
7. In order to prove the case of the prosecution, the
prosecution in all examined 12 witnesses comprising of the
complainant, shadow witness, FSL Officer, investigation
agency, higher officials of the accused and also sanctioning
authority as PWs.1 to 12. The prosecution also relied on 28
documents which were exhibited and marked as Exs.P1 to P28.
Material objects in all 9 in number were relied on by the
prosecution which were also marked as MO Nos.1 to 9. On
conclusion of the prosecution evidence, accused statement as
CRL.A No. 2646 of 2012
contemplated under Section 313 Cr.P.C. was recorded by the
learned Special Judge wherein accused has denied majority of
the questions and in respect of question no.63, the accused has
answered that he would be filing a written statement. He also
answered that he has got witnesses to be examined on his
behalf while answering question no.64. The written statement
filed by the accused as contemplated under Section 313(5)
Cr.P.C. is part of the records which reads as under :-
"¹.Dgï..¦.¹. PÀ®A 313 gÀ CrAiÀÄ°è ºÉýPÉ
£Á£ÀÄ J¸ï.J¸ï. ¸À§¤Ã¸À «£ÀAw ¥ÀƪÀðPÀ
¸À°è¸ÀÄwÛgÀĪÀ ºÉýPÉ.
£À£U
À É F PÉù£À ¦AiÀiÁð¢zÁgÀ£ÁzÀ C«£ÁµÀ
CgÀ½PÀnÖ EªÀ£À ¥ÀjZÀAiÀĪÉà EgÀ°¯Áè ºÁUÀÆ
02.03.2009 gÀAzÀÄ ¸ÁAiÀÄAPÁPÀ 5.40 gÀªÀgU É É £Á£ÀÄ
CªÀ£À ªÀÄÄRªÀ£Éßà £ÉÆÃrgÀ°¯Áè CzÀgÀ ¥ÀƪÀðzÀ°è
£À£UÀ É JA¢UÀÆ DvÀ£À ¨ÉnÖAiÀiÁV®è ªÀÄvÀÄÛ
02.03.2009 gÀAzÀÄ ¸ÁAiÀÄAPÁ® 5.40 gÀ ªÉüÉUÉ
¸Àzj À C«£ÁµÀ CgÀ½PÀnÖ FvÀ£ÀÄ »gÉèÁUÉêÁrAiÀÄ
ªÀĺÁAvÉñÀ ªÀĺÁ°AUÀ UÉÆÃqÀUÃÉ j J£ÀÄߪÀª£ À À
¸ÀAUÀqÀ ¥Àu æ ÁªÀÄ nà ¸ÁÖ® ¨É¼ÀUÁ«AiÀÄ°èUÉ §AzÁUÀ
¸Àzj À à ªÀĺÁAvÉñÀ ªÀĺÁ°AUÀ UÉÆÃqÀUÃÉ j FvÀ£ÀÄ
£À£ÀߣÀÄß vÉÆÃj¹ EªÀgÃÉ ¸À§¤Ã¸À vÉgÁpAiÀĪÀgÀÄ
EgÀÄvÁÛgÉ CAvÁ CªÀ¤UÉ vÉÆÃj¹ vÀPÀët C«£ÁµÀ
FvÀ£ÀÄ £À£Àß ±Ànð£À JqÀUÀqÉ eÉé£À°è 500 gÀÆ.
ªÀÄÄR ¨É¯AÉ iÀÄ £ÉÆÃlÄUÀ¼£ À ÀÄß ºÁQzÀ£ÀÄ DUÀ £Á£ÀÄ
¸Àzj À £ÉÆÃlÄUÀ¼£À ÀÄß eÉé¤AzÀ
CRL.A No. 2646 of 2012
»A¢gÀÄV¸ÀĪÀÅzÀgÀµÀÖg°
À è ¯ÉÆÃPÁAiÀÄÄPÀÛ ¹§âA¢AiÀĪÀgÀÄ
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§gÉzÀÄ £À¤ßAzÀ MvÁÛAiÀÄ ¥ÀªÀðPÀªÁV ºÉýPÉ §gÉzÀÄ
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DzÀPÁgÀt ¤gÀ¥ÀgÁ¢üAiÀiÁzÀ £À£ÀߣÀÄß
C¥ÀgÁzsÀ¢AzÀ ªÀÄÄPÁÛAiÀÄUÉƽ¸À¨ÃÉ PÉAzÀÄ «£ÀAw
¥ÀƪÀðPÀ ¨ÉÃrPÉƼÀÄîvÉÛãÉ.
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¢£ÁAPÀ: 24.02.2012"
8. On behalf of the accused, two witnesses have been
examined as DWs.1 and 2. Among them, DW-1 is the friend
and classmate of the accused who said that he had an occasion
to meet the accused in the said hotel and it is the complainant
who thrusted the money into the pocket of the accused. DW-2
also deposed almost on the same lines as that of DW-1.
9. On conclusion of the recording of the evidence of
the prosecution and the defence, learned trial Judge heard the
parties in detail and recorded a categorical finding that the
prosecution is successful in establishing that there was a
demand made by the accused to carry out work of the
complainant pending with the accused by demanding a sum of
Rs.3,000/- initially, and it was settled for a sum of Rs.2,000/-
CRL.A No. 2646 of 2012
and accepted the same from the hands of the complainant as
illegal gratification and thus convicted the accused for the
aforesaid offences and sentenced the accused by sentencing
the accused as under:-
"The accused is sentenced to undergo
rigorous imprisonment for a period of one year and
to pay fine of Rs.5,000/- in default simple
imprisonment for a further period of three months
for the offences punishable U/s 7 of the Prevention
of Corruption Act, 1988.
The accused is further sentenced to undergo
rigorous imprisonment for a period of one and half
years and to pay fine of Rs.5,000/- in default
simple imprisonment for a further period of three
months for the offence punishable U/s 13 (1) (d)
r/w Sec.13(2) of the Prevention of Corruption Act,
1988.
Both the sentences shall run concurrently.
The period of detention of accused in judicial
custody, if any is set off against the sentences
imposed against him U/s 428 of the Cr.P.C."
10. Being aggrieved by the same, the accused-
appellant is before this Court.
11. In the appeal, following grounds have been raised.
That the Learned Special Judge failed to
appreciate the fact that the Appellant had never
seen the complainant and that the complainant
along with his friend approached him in front of
CRL.A No. 2646 of 2012
Pranam Hotel wherein the friend of the complainant
introduced the Appellant to the complainant and
then complainant thrusted the amount forcibly in his
shirt pocket and at that time he was trapped. Hence
the judgment of the Special Judge is made without
application of mind and is bad in the eye of law and
is liable to be set-aside.
The Learned Judge failed to appreciate
the fact that PW-2 i.e Complainant by taking undue
advantage of the mental capacity of his brother
Eranna, got executed the gift deed without the
knowledge of his father by playing fraud on Eranna.
Hence the Learned Special Judge came to the wrong
conclusion and passed the impugned Judgment.
Further, the Learned Special Judge failed
to note the fact that the amount was thrusted in the
pocket of the Appellant after the Complainant was
introduced to him by Mahantesh Godgeri. Hence
looking from any angle the Appellant is proved to be
innocent but, in spite of that with false assumption
and presumption the trial Judge committed error
and passed impugned Judgment.
The Learned Special Judge also failed to
appreciate the evidence of DW-1 and DW-2 and
their evidence corroborate each other and hence
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CRL.A No. 2646 of 2012
without application of mind the Learned Special
Judge proceeded to pass the impugned Judgment.
There is absolutely no independent
evidence about the demand of money and the
documentary evidence cuts of the very roots of the
allegation made against the Appellant.
The Learned Special Judge failed to see
that no conviction can be based on the
uncorroborated statements.
No material to establish payment if
alleged amount in pursuant to alleged demand.
Since there is no valid sanction, the trial
without valid sanction is a trial without Jurisdiction.
Viewed from any angle, the order of
Judgment and conviction is perverse and illegal,
since it is contrary to the evidence on record and
the Trial Judge has drawn presumption on unproved
facts based merely on conjuncture and surmises
rather than evidence on record.
Viewed from any angle the order of
Judgment of Conviction passed against the appellant
cannot be sustained and the same calls for
interference at the hands of this Hon'ble Court."
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CRL.A No. 2646 of 2012
12. Learned counsel for the appellant Sri B.S.Sangati
reiterating the above grounds contended that the prosecution
has utterly failed to make out any case whatsoever as against
the accused and the prosecution witnesses are unreliable
witnesses as they are government servants and they have
supported the case of the prosecution under the fear and
further action against them. Therefore, the prosecution case
suffers for want of independent evidence and the alleged trap is
a motivated trap and the appellant has not at all handled the
tainted currency notes and despite the same, a concocted trap
mahazar has been drafted by the investigation agency and thus
sought for allowing the appeal.
13. He further contended that the oral evidence of
DWs.1 and 2 clearly shows that the tainted currency was
thrusted into the shirt pocket of the accused and accused has
not at all handled the tainted currency and there was no
necessity of accepting the money from the complainant either
by the accused and therefore, entire prosecution case suffers
for want of legal evidence and thus sought for allowing the
appeal.
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CRL.A No. 2646 of 2012
14. In support of his arguments, learned counsel for the
appellant has relied on the following judgments rendered by the
coordinate benches of this Court.
1. 2022(1) KCCR 722 in the case of Sri
Krishnamurthy V/s State by Lokayukta
Police.
2. Criminal Appeal No.165/2010
(Dr.S.R.Chowdaih V/s State of Karnataka
by Lokayukta Police.
3. 2007(4) KLJ 138 in the case of State of
Karnataka V/s A.V.Satish.
15. Per contra, Sri Anil Kale, learned counsel
representing the Lokayukta contended that the complainant,
shadow witness and other circumstantial witnesses have
supported the case of the prosecution, there is a legal evidence
available on record to support the finding recorded by the
learned trial Judge and thus sought for dismissal of the appeal.
16. He further contended that the case of the accused
is that the money has been thrusted into his shirt pocket is
disbelieved by the learned trial Judge by recording a cogent
and convincing reason in para 12 of the impugned judgment
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CRL.A No. 2646 of 2012
and the same is based on sound and logical reasons. He also
contended that the material evidence on record has been
properly appreciated at para 19 by the learned trial Judge while
passing the impugned judgment.
17. He also contended that the oral testimony of DWs.1
and 2 are nothing but self-serving testimony and the same has
been established by the prosecution that they are implanted
witnesses.
18. He further contended that in respect of the work
pending with the accused, the accused initially demanded a
sum of Rs.3,000/- as illegal gratification, later on it was freezed
to a sum of Rs.2,000/- by bargain. But, the complainant was
not interested in parting with that sum of Rs.2,000/- and
therefore, he approached the Lokayukta Police and based on
the said complaint, the accused has been successfully trapped
and colour test stood positive, and thereby, the prosecution has
been successful in establishing all ingredients to attract the
aforesaid offences and thus sought for dismissal of the appeal.
19. He further argued that there cannot be any dispute
as to the legal principles enunciated in the decisions relied on
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CRL.A No. 2646 of 2012
by the learned counsel for the appellant, but the facts of each
has to be looked into and the protocol to establish offence
under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act
envisages that panchas, just because they are government
servants, their evidence cannot be ignored in toto unless the
appellant makes out a case that the oral testimony of the
official witnesses has caused serious prejudice and there is a
previous animosity nurtured by the official witnesses against
the appellant herein and thus sought for dismissal of the
appeal.
20. In the light of the rival contentions, this Court
perused the material on record meticulously. On such perusal
of the material on record, following points would arise for
consideration.
(1) Whether the prosecution is successful in
establishing all the ingredients to attract the
offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the
P.C.Act?
(2) Whether the impugned judgment is suffering
from legal infirmity and perversity and thus
calls for interference by this Court?
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CRL.A No. 2646 of 2012
(3) Whether the sentence is excessive?
21. In the case on hand, in order to establish the case
of the prosecution 12 witnesses have been examined. Among
12 witnesses, PW2 is the complainant who deposed in line with
the complaint averments and also specifically deposed about
the handing over of the tainted currency notes on demand
made by the accused in Pranam Hotel at Belagavi on the day of
trap. He further deposed that in respect of the application filed
by him seeking transfer of revenue entries, the accused initially
demanded a sum of Rs.3,000/- as illegal gratification, later on
it was settled for a sum of Rs.2,000/- for that also, he was not
interested to part away with and therefore he approached the
Lokayukta Police.
22. He withstood the detailed searching cross-
examination made on behalf of the accused and specifically
denied the suggestion that he has filed a false complaint
against the appellant. Shadow witness is examined as PW6. He
also supported the case of the prosecution by deposing before
the Court in respect of the contents of entrustment/
experimental mahazar and also trap mahazar. In his cross-
examination also suggestions made to him that - "tainted
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CRL.A No. 2646 of 2012
money was thrusted into the pocket of the accused is denied by
him". No useful material is elicited in the cross-examination of
PW6 so as to disbelieve his oral testimony nor to establish that
he nurtured his previous enmity or animosity as against the
accused so as to depose falsely against the accused is
concerned. The co-pancha is examined as PW7. He deposed
about the entrustment mahazar and reaching the place of
incident soon after the pre-designated signal is obtained by the
raid party and having witnessed the tainted money seized from
the shirt pocket of the accused at Pranam Hotel.
23. The other prosecution witnesses have also
supported the case of the prosecution. PW.5 is the sanctioning
authority who has perused the materials collected by the
investigating officer and issued the sanction to prosecute. On
perusal of the material on record, there is no serious dispute in
regard to the sanction.
24. Head of the raid party Sri R.K.Patil is examined as
PW.12. He deposed about the receipt of the complaint and
arranging for trap, entrustment mahazar, trap mahazar,
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CRL.A No. 2646 of 2012
conducting the investigation and filed the charge sheet against
the petitioner.
25. On behalf of the accused, two witnesses have been
examined as DWs.1 and 2. DW.1 deposed before the Court that
he is the friend and classmate of the accused at Navalgund at
the School level. He has stated that on 02.03.2009, he has
seen the accused for the last time, on that day in the
Tahasildar office at about 4.45. p.m., he had met the accused.
Since after a long time, they met each other, they went to
Pranam Hotel for consuming tea, at that juncture, one stranger
came to the place where the accused and himself were sitting,
he thrusted three or four currency notes of Rs.500/-
denomination into the shirt pocket of the accused. At that
juncture about 4 to 5 persons immediately came and
introduced themselves as they are Lokayukta Police and took
the accused to their custody. In his cross-examination, it is
elicited that he is B.A graduate and he is permanent resident of
Belagavi and accused is permanent resident of Belagavi and
does not know the address of the accused nor the location of
his house. DW.1 admits that he works in the VRL office of
Belagavi and his working hours is morning 9.30 a.m. to evening
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CRL.A No. 2646 of 2012
8.30 p.m. It is also elicited in his cross-examination that, he
has no document to show that as on the date of incident, he
has been deputed to the work of release of the seized vehicle.
26. DW.2 is one Mahantesh Mahaling Godageri. He
deposed before the Court that accused is working as a Village
Accountant in the Hirebagewadi village and therefore, he has
acquaintance with him. On 02.03.2009 he had visited the
Belagavi and at that juncture, his friend one Avinash Haralikatti
contacted him and asked him to come to Belagavi. Accordingly,
at about 2.00 p.m., DW.2 accompanied the complainant. At
about 4.30 p.m he had visited the Zilla Panchayath office along
with the complainant. At that juncture another person came
there and all of them visited the Tahasildar office. Thereafter
words, he has visited the Pranam Hotel and he was consuming
tea. At that juncture he introduced the complainant to the
accused and at that juncture all of a sudden complainant
thrusted currency notes of Rs.500/- denomination into the shirt
pocket of the accused and at that juncture 5 to 6 people came
there and introduced themselves as Lokayukta Police and
arrested the accused. In his cross-examination he admits that,
there is a printing press in the neighboring place of his house
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CRL.A No. 2646 of 2012
i.e., Nagendra Printing Press and the accused contacted him
through landline phone of the said printing press and he does
not know the number of the said landline phone.
27. The above evidence on record is sought to be re-
appreciated for the purpose of allowing the appeal.
28. In the case on hand, the complainant, the shadow
witnesses and other material witnesses including the head of
the raid party have supported the case of the prosecution. The
complainant while deposing before the Court reiterated the
contents of the complaint in toto. He also supported the case of
the prosecution by deposing about the contents of the
experimental mahazar as well as the trap mahazar. The
suggestion made to the prosecution witnesses so also, the
shadow witnesses has supported the case of the prosecution.
29. In order to establish the ingredients to attract the
offences under Sections 7 and 13(1)(d) read with section 13(2)
of the P.C.Act, the prosecution has to prove the charges leveled
against him beyond reasonable doubt like any other criminal
offence and the accused should be considered innocent till it is
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CRL.A No. 2646 of 2012
established otherwise by proper proof of demand and
acceptance of the illegal gratification.
30. With the above legal requirement, if the material on
record is appreciated, the work of the complainant was pending
with the accused in as much as he had filed an application
seeking transfer of entries based on the registered gift deed
which was executed by his elder brother to the extent of 1 acre
24 guntas in respect of land bearing Sy.No.401/2 of
Hirebagewadi Village.
31. In that regard, when he contacted the accused, he
initially made a demand of Rs.3,000/- as illegal gratification,
which was negotiated by the complainant and it was fixed at
sum of Rs.2,000/-. The complainant was not at all interested in
paying the said amount to the accused and therefore he
contacted the Lokayukta Police.
32. It is pertinent to note that the head of the raid
party or the panch witnesses did not nurture previous enmity or
animosity against the accused and they are law abiding citizens
and they have discharged their work as is required under law.
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CRL.A No. 2646 of 2012
The protocol in laying a trap requires that the presence of two
independent witnesses preferably Government Servants.
33. In the case on hand shadow witness and the co-
pancha are the Government Servants, there is no dispute in
this regard.
34. The materials on record clearly show that when the
complainant visited the office of the accused on the day of the
trap, it was intimated to the complainant that he has visited
Hirebagewadi village. Therefore, entire trap party proceeds to
the Hirebagewadi but by the time they reached the
Hirebagewadi, the accused had returned to Belagavi.
Accordingly the raid party again returns to the Belagavi and
they contacted the accused. At that juncture, accused told the
complainant to visit him in Pranam Hotel. Accordingly, the
complainant and the shadow witness visited the Pranam Hotel,
wherein on demand made by the complainant handed over the
tainted money to the hands of the accused which he counted
and kept in the shirt pocket, as could be seen from the trap
mahazar. However, the contention taken by the accused is that
the currency notes were thrusted into the pocket of the
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CRL.A No. 2646 of 2012
accused. This stand is taken by the accused by cross-examining
PW.2 and so also the similar evidence is found in DW.1 and oral
testimony of DWs.1 & 2. The learned Trial Judge while
considering the said aspect of the matter in paragraph No.19,
held as under:
"19. Further it is suggested to this witness
that on 2/3/2009 from 9.00 am., to 5.00 p.m.,
accused was in Hirebagewadi itself for distribution
of ration cards. But the said suggestion is not
supported by any cogent evidence. A suggestion
was made to this witness that on 2/3/2009 evening
at 500 pm., along with his friend he approached
the accused and without demand thrusted the
amount in the shirt pocket of accused and at that
time the Lokayukta officials came there and
apprehended the accused. But the said suggestion
came to be denied. This part of the cross-
examination of PW.2 on page No.8 reads as under :
"DgÉÆævÀ£ÀÄ £À¤ßAzÀ AiÀiÁªÀÅzÉà ºÀt PÉüÀ¢zÀÝgÀÆ
¸À»vÀ £Á£ÀÄ CªÀ£À eÉé£À°è ºÀt EmÉÖ£ÀÄ JAzÀÄ ¸ÀÆa¸ÀĪÀÅzÀÄ
¸ÀjAiÀÄ®è. D ¸ÀªÀÄAiÀÄzÀ°è ¯ÉÆÃPÁAiÀÄÄPÀÛ C¢üPÁjUÀ¼ÀÄ §AzÀÄ
C¥Á¢vÀ£À PÉÊUÀ¼£
À ÀÄß UÀnÖAiÀiÁV »rzÀÄPÉÆAqÀgÀÄ JAzÀÄ
¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
If this version is accepted then it is to be noted
here that immediately after thrusting the amount
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the hands of accused were held by Lokayukta
officials. But it is to be noted here that hand wash
of accused has also shown positive to
phenolphthalein test. If at all accused had not
touched the amount then no explanation is
forthcoming as to what was the reason for the hand
wash of accused showing positive to
phenolphthalein test. Further during the cross-
examination of PW.2 no suggestion was made as to
who was his friend, who accompanied him so as to
introduce the accused or identifying the accused.
Hence, it is evidence that in the cross-examination
the evidence of PW.2 is not at all shaken."
35. As could be seen from the above reasoning
recorded by the Trial Judge, it is highly impossible that if the
colour test would not turn positive unless the accused has
handled the tainted currency notes. Therefore, the contention
taken on behalf of the accused that the money was thrusted
into the shirt pocket of the accused cannot be countenanced in
law. Further, in the absence of previous enmity or animosity
nurtured by the complainant against the accused, why would
he thrust the money into the shirt pocket of the accused so as
to falsely implicate him in the case cannot be countenanced in
law. Further in the written submission given by the accused
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under Section 313(5) of Cr.P.C, he has specifically taken a
contention that the complainant is total stranger and in fact he
was introduced by DW.2 to him for the first time in Hotel
Pranam at Belagavi. When such being the stand that has been
taken by the accused, why would a stranger directly thrust the
tainted currency notes into the shirt pocket of the accused,
which remained unexplained by the accused, and therefore,
such contention cannot be countenanced in law.
36. When the defence that has been taken by the
accused to explain as to how the incident has occurred, having
regard to the fact that the complainant and shadow witnesses
have categorically spoken about the demand and acceptance of
the tainted money by the accused, the prosecution would
definitely enjoy the presumption available to it under the
provisions of the Act and such presumption is sought to be
rebutted by the accused and if he failed to do so, this Court has
not find any legal infirmity whatsoever in reaching out a finding
by the Trial Court that, the prosecution is successful in
establishing all the ingredients, required to convict the accused
under the provisions for the offences punishable under Sections
7 and 13(1)(d) read with Section 13(2) of the P.C.Act.
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37. As rightly contended by the learned counsel for the
Lokayukta Sri Anil Kale there cannot be any dispute whatsoever
as to the principles of law enunciated in the judgments relied
on by the learned counsel for the petitioner rendered by the co-
ordinate Benches of this Court. In the first place, the facts of
this case being altogether different from the facts involved in
the decisions relied on by the learned counsel for the petitioner
the same has no application whatsoever. Further the order
passed by the co-ordinate Bench wound not bind while
appreciating the case on hand.
38. In the case on hand, the accused has taken up the
responsibility to establish a case by himself that the money was
thrusted into the shirt pocket of the accused and such was not
the factual aspect in the cases relied on by the learned counsel
for the appellant. In the case on hand, just because PWs.6 and
7 being the Government Servants alone, their testimony cannot
be doubted by relying on the judgment rendered by this Court
in the case of Dr.S.R.Chowdaiah Vs. The State of
Karnataka by Lokayukta Police in Crl.A.No.165/2010
disposed of on 09.07.2015. Suffice to say that, viewed from
any angle the grounds urged on behalf of the appellant are
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hardly sufficient to interfere with the well reasoned finding
recorded by the learned Trial Judge.
39. As such, following the dictum of the Hon'ble Apex
court in the case of A. Subair Vs. State of Kerala reported in
(2009) 6 SCC 587, this court is of the considered opinion that
as no other points are urged on behalf of the appellant to hold
that the impugned judgment is suffering from legal infirmity
and perversity. Accordingly, Point No.1 is answered in the
affirmative and Point No.2 in the negative.
40. Regarding point No.3 :- The learned Trial Judge
has convicted the accused and passed an order of sentence as
referred to supra. In the absence of any mitigating
circumstances placed before this Court, this Court does not find
any reason whatsoever to interfere with the sentence ordered
by the learned Trial Judge. Accordingly, the point No.3 is
answered in the negative and following order is passed.
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ORDER
The appeal is dismissed.
The appellant is directed to surrender before
the Trial Court for serving the sentence on or before
25.06.2022.
Office is directed to return the Trial Court
records with the copy of this order forthwith.
Sd/-
JUDGE
CLK/EM
