Karnataka High Court

State Of Karnataka vs Sri Tippanna S/O Sidramappa ... on 30 May, 2022

Bench: M G Uma

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

         DATED THIS THE 30TH DAY OF MAY, 2022

                        BEFORE

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

         CRIMINAL APPEAL NO.200019/2016

BETWEEN:


STATE OF KARNATAKA
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR (LOKAYUKTA)
HIGH COURT OF KARNATAKA
GULBARGA BENCH.
                                          ... APPELLANT

(BY SRI: SUBHASH MALLAPUR, SPL. P.P)

AND:

SRI. TIPPANNA S/O SIDRAMAPPA
AKMANCHI, AGE: 34 YEARS
OCC: ASSISTANT REVENUE OFFICER
KARNATAKA HOUSING BOARD OFFICE
ASKIHAL, RAICHUR
R/O: PLOT NO.61, SAINAGAR
BEHIND SAI TEMPLE
JEWARGI ROAD
GULBARGA-585103.
                                        ... RESPONDENT

(BY SRI: AVINASH A.UPLOANKAR, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF THE CRIMINAL PROCEDURE CODE,
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 26.08.2015
PASSED IN SPL. CASE NO.5/2013 ON THE FILE OF THE II
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ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAICHUR
WHEREBY ACQUITTING THE ACCUSED/RESPONDENT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 7 AND 13(1)(D) AND
13(2) OF THE P.C.ACT 1988; SET ASIDE THE AFORESAID
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE
COURT BELOW BY ALLOWING THIS CRIMINAL APPEAL;
CONVICT AND SENTENCE THE ACCUSED/RESPONDENT, FOR
THE OFFENCES WHICH HE HAS BEEN CHARGE SHEETED IN
ACCORDANCE WITH LAW, TO MEET THE INTEREST OF
JUSTICE AND EQUITY.


     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The State has preferred this appeal being aggrieved by

the judgment of acquittal dated 26.08.2015 passed in

Spl.Case No.5 of 2013 on the file of the II Additional District

and Sessions Judge at Raichur, acquitting the respondent-

accused for the offence punishable under Sections 7 and

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

Corruption Act (for short 'PC Act').

2. It is the contention of the prosecution that the

accused is a Government servant working as Assistant

Revenue Officer (ARO) in Karnataka Housing Board and had

demanded illegal gratification of Rs.4,000/- from PW4 - the

informant. Thereby, committed criminal misconduct by

demanding and accepting the illegal gratification to show

official favour. Initially, first information was registered by the

informant regarding demand made by the accused to show

official favour for execution of the sale deed. It is stated that

the accused has again demanded and accepted the illegal

gratification of Rs.4,000/- from the informant in the presence

of the official witnesses and at that time, he was trapped by

the Investigating Officer. After investigation, the charge sheet

came to be filed.

3. The Trial Court framed the charge against the

accused. He pleaded not guilty and claimed to be tried. The

prosecution examined as many as 8 witnesses, got marked

Exs.P1 to 32 and identified Mos.1 to 10 in support of his

contention. The accused has denied all the incriminating

materials available on record but has not chosen to lead any

evidence in support of his defence. The Trial Court after

taking into consideration all the materials on record, came to

the conclusion that the prosecution is not successful in

proving the guilt of the accused and accordingly, acquitted the

accused. Being aggrieved by the same, the State preferred

this appeal seeking conviction of the accused.

4. Heard Sri.Subhash Mallapur, Special Public

Prosecutor for the appellant-State and Sri.Avinash A

Uploankar, learned counsel for the respondent. Perused the

materials on record including the Trial Court records.

5. Learned counsel for the appellant submitted that

specific allegations are made against the accused who is

admittedly a Government servant working as ARO in the

Karnataka Housing Board. The first information came to be

lodged by the informant himself. It is specifically stated that

there was demand of illegal gratification to show official

favour. Even though the informant turned hostile to the case

of prosecution for the reasons best known to him, the shadow

witness who is examined as PW5 has supported the case of

prosecution with regard to payment and acceptance of

gratification in the railway station. Moreover, the explanation

given by the accused as per Ex.P31 discloses that the accused

had admitted receipt of Rs.4,000/- as illegal gratification. All

these incriminating materials were ignored by the Trial Court

and acquitted the accused. Therefore, he prays for re-

consideration of materials on record and to convict the

accused for the above said offences.

6. Per contra, learned counsel for the accused

submitted that even though the complaint came to be lodged

against the accused and it is stated that trap was held by the

Investigating Officer, the first informant has not supported the

case of prosecution. Even the shadow witness has stated in

his chief examination regarding demand and acceptance of

illegal gratification. However, during cross examination he

categorically admitted that he had not heard the accused

demanding the illegal gratification. The accused has

specifically stated in Ex.P31 that the informant deliberately

paid Rs.4,000/- to him, even though no work was pending

with him. Admittedly, the accused was not the person to

execute the sale deed. No work was pending with him to

demand illegal gratification. Considering all these facts and

circumstances, the Trial Court has acquitted the accused.

There are no reasons to convict the accused. Accordingly, he

prays for dismissal of the appeal.

7. In view of the rival contentions urged by learned

counsel for the parties, the point that would arise for my

consideration is:

"Whether the impugned judgment and order of acquittal passed by the Trial Court calls for any interference?"

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

following:

REASONS

8. It is the specific contention of the prosecution that

the accused demanded and accepted illegal gratification to

show the official favour i.e., execution of sale deed in favour

of the informant, as he was working as ARO in Karnataka

Housing Board. The first information was filed by the

informant as per Ex.P5. It is the contention of prosecution

that the entrustment panchanama was drawn in the presence

of two official witnesses and thereafter the informant went

and met the accused along with shadow witness. The accused

again demanded and accepted Rs.4,000/- in the Railway

Station and he was trapped in the presence of witnesses.

9. To prove the same, the prosecution has examined

PWs.1 to 8.

(i) PW1 - M Noushad Ali Khan, is the Inspector of

RPF, Raichur. He is the formal witness who speak about the

presence of accused in the Railway Station.

(ii) PW2 - Muralireddy is the colleague working with

the accused. He is the formal witness. He has given certified

copy of documents.

(iii) PW3 - Tanujendra, is also the colleague of the

accused who is said to have identified the voice of the

accused in the voice recorder. He has not supported the case

of prosecution.

(iv) PW4 - Mohd.D Mehbud is the informant who

lodged the first information as per Ex.P5. This witness has

also not supported the case of prosecution with regard to the

demand and acceptance of illegal gratification. He has

categorically admitted that no official work was pending with

the accused.

(v) PW5 - Mansoor Khan is the shadow witness.

During chief examination, witness stated that the accused

demanded and accepted the illegal gratification. However,

during cross examination, it is elicited that since the incident

had taken place in the Railway Station, he had not heard any

conversation that had taken place between the informant and

the accused. He also stated that he has not heard accused

demanding illegal gratification. He only saw the informant

paying Rs.4,000/-.

(vi) It is pertinent to note that in the explanation as

per Ex.P31 given by the accused, he has stated that the

informant came and gave Rs.4,000/- without any reason and

thereby, deliberately and falsely implicated him in the case.

(vii) PW6 - Sajeed Hussian is the Assistant Engineer,

PWD who drawn spot sketch Ex.P27.

(viii) PW7 - S N Jayaram is the Managing Director of

KHB who accorded sanction to prosecute the accused.

(ix) PW8 - Ningappa is the Investigating Officer.

10. On perusal of these materials on record, it is clear

that the demand of illegal gratification is never proved by the

prosecution. The Hon'ble Apex Court while considering the

similar situation in the case of N. VIJAYAKUMAR vs. STATE

OF TAMIL NADU , discussed about the position of law

regarding proof of demand to seek conviction of the accused

and it is held in Paragraph Nos.26 and 27 as under:

"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI, and in B. Jayaraj v. State of A.P. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj read as under: (SCC pp. 58-59)

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot

1 (2021) 3 SCC 687

constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.

8. 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 insofar as the offence under Sections 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.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

The very same proposition of law is once again

reiterated by the Hon'ble Apex Court in the case of

K. SHANTHAMMA vs. STATE OF TELANGANA , wherein it

is held that where the demand of illegal gratification by the

accused was not proved by the prosecution and that the

demand is sine-qua-non for establishing offence under Section

7. Hence, it was held that the offence committed by the

accused is not established.

11. Thus, the position of law is very well settled. The

proof of demand is sine-qua-non to seek conviction of the

accused for the offence punishable under Sections 7, 13(1)(d)

read with Section 13(2) of PC Act. Even though the