Karnataka High Court
State By Inspector Of Police vs Shri M Mallikarjuna on 19 December, 2023
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CRL.A No. 349 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 349 OF 2014 (A)
BETWEEN:
STATE BY INSPECTOR OF POLICE,
KARNATAKA LOKAYUKTA, DAVANAGERE,
REP/BY SPL. PUBLIC PROSECUTOR FOR LOKAYUKTA,
HIGH COURT BENCH, BANGALORE - 560 001.
...APPELLANT
(BY SRI VENKATESH S. ARABATTI, SPL. PP)
AND:
SHRI M. MALLIKARJUNA,
S/O M. AJJAPPA,
AGE:56 YEARS,
OCC:ASST. EXECUTIVE ENGINEER,
3RD SUB DIVISION PWD, HARIHAR,
DIST:DAVANAGERE - 577 002.
...RESPONDENT
(BY SRI I.S. PRAMOD CHANDRA, ADVOCATE)
THIS CRL.A IS FILED U/S.378 (4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:1.8.13 PASSED BY THE
PRL.DIST. AND S.J., AND SPL. JUDGE (LOKAYUKTA)
DAVANAGERE IN SPL. (LOK) CASE NO.5/2008-ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 7 AND
13 OF THE PREVENTION OF CORRUPTION ACT 1988 R/W
SEC.13(2) OF THE PREVENTION OF CORRUPTION ACT 1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 26.09.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
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CRL.A No. 349 of 2014
JUDGMENT
1. This appeal is filed by the appellant-Lokayukta Police,
Davangere being aggrieved by the judgment and order of
acquittal dated 01.08.2013 passed in Special (Lok) Case
No.5/2008 on the file of the Principal District and
Sessions Judge and Special Judge (Lokayukta) at
Davangere, wherein the Trial Court recorded the acquittal
of the accused/respondent herein for the offences
punishable under Sections 7 and 13(1)(d) r/w 13(2) of
the Prevention of Corruption Act, 1988 (for short 'P.C
Act').
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
3. The complainant-Sri.G.Rudragouda was working as Class-
III Contractor in P.W.D department and PW.6-Sri.G.R.
Dhanaraj was his partner. Both were doing contract work
jointly. In the year 2007, PW.1 and PW.6 have been
allotted the work for repairing the road of 12 Kms., by the
Department. The cost was estimated for a sum of
Rs.5,75,000/-. Initially, Rs.75,000/- was paid to them
and remaining balance was due from the Department. As
per the averments of the complaint, PW.1 obtained work
done certificate and also measurement bill from PW.4
who was working as Junior Engineer of PWD Department
and submitted the same before the accused for approval.
It is further stated that the accused had demanded
Rs.40,000/- to clear the bill. Being unsatisfied, PW.1
decided to lodge the complaint before the Lokayukta
police and approached PW.10 and informed about the
illegal demand made by the accused.
4. The respondent - Police have registered a case and
secured two witnesses namely shadow and panch
witnesses and conducted pre-trap panchanama and
directed PWs.1 and 3 to approach the accused. As per
the averments of the complaint, PWs.1 and 3 have
approached the complainant and handed over the illegal
gratification as demanded by the accused. After having
paid the amount, a signal was sent to the jurisdictional
police, the jurisdictional police have conducted a trap and
seized the tainted amount and completed the formalities.
After conducting investigation, submitted the charge
sheet.
5. In order to prove the case of the prosecution, the
prosecution examined in all 10 witnesses as PWs.1 to 10
and got marked 49 documents as Exs.P1 to P49 and also
identified material objects as M.O.1 to M.O.5. On the
other hand, the accused got marked 19 documents as
Exs.P1 to P19. The Trial Court after appreciating the oral
and documentary evidence on record opined that the
prosecution has failed to prove the case beyond all
reasonable doubt that there is a demand and acceptance
of illegal gratification by the accused and recorded the
acquittal.
6. Heard Sri.Venkatesh S.Arabatti, learned Special Public
Prosecutor for the appellant-Lokayukta Police and
Sri.I.S.Promod Chandra, learned counsel for the
respondent.
7. It is the submission of the learned Special Public
Prosecutor for the appellant-Lokayukta Police that the
judgment and order of acquittal passed by the Trial Court
is contrary to the evidence on record which is held to be
perverse and illegal. Therefore, the judgment and order
of acquittal is required to be set aside.
8. It is further submitted that the Trial Court failed to
consider the evidence of PWs.1, 2 and 3 who are the
complainant, independent panch witness and shadow
witness. The evidence of these witnesses is consistent in
relating to the demand and acceptance of illegal
gratification. The tape recorder conversation was made
to listen both PWs.2 and 3 and they have identified the
voice and also assisted the respondent police in
conducting the trap. In spite of corroboration being made
by the independent witnesses, the Trial Court has failed
to take note of the evidence of PWs.2 and 3 and recorded
the acquittal which is perverse and erroneous.
9. It is further submitted that PW.4 who was working as
Junior Engineer had verified the work done by PW.1 and
PW.6 and issued work done certificate. Once the work
done certificate is issued, the accused had to clear the
bill. Even though the prosecution has established the
pendency of work with the accused, the Trial Court failed
to consider the said pendency of work and further failed
to take note of the demand of illegal gratification and
recorded the acquittal.
10. It is further submitted that the Trial Court has ignored in
considering the evidence both oral and documentary on
record and recorded the acquittal which is against the
settled principle of law and further, the Trial Court failed
to raise the presumption which is envisaged under
Section 20 of P.C Act. Having failed to raise the
presumption resulted in passing the impugned judgment
which is required to be set aside. Making such
submission, learned Special Public Prosecutor for the
appellant - Lokayukta prays to allow the appeal.
11. Per contra, Sri.I.S.Promod Chandra, learned counsel for
the respondent vehemently justified the judgment and
order of acquittal passed by the Trial Court and submitted
that PW.1 has not approached PW.10 voluntarily. It is
stated in his evidence that when PW.10 had been to
Harihara, PW.1 approached PW.10 casually and discussed
about the matter and as per the direction of PW.10, PW.1
acted upon. Even though PWs.1, 2 and 3 have
consistently stated about the demand and acceptance of
illegal gratification, their evidence clearly indicates that
the accused has not received the amount. The amount
was seized not from the pocket of the accused, it was
kept on the table and it is an admitted fact that the VIP
room of the guest house was to be opened on that day,
hence, the accused asked PW.1 as to whether he had
brought the pooja things. The said conversation depicted
as if the accused had demanded the illegal gratification
from PW.1 which is far away from truth.
12. It is further submitted that PW.7-S.Surendra was working
as Executive Engineer and he is said to have verified the
work done by PWs.1 and 6 on 18.03.2008 and submitted
report as per Ex.P42. According to PW.7, as on the date
when PWs.1 and 6 have submitted the work done
certificate and claiming the bill, the work was not
completed. The complainant was trying to influence the
accused to sanction the bill. However, the accused did
not heed his words and asked the complainant to
complete the work and submit the report thereafter.
Being unhappy for the said development, the complainant
has filed a false complaint about the demand of illegal
gratification and the Trial Court after appreciating the oral
and documentary evidence of record properly, recorded
the acquittal which requires no interference. Making such
submission, the learned counsel for the respondent prays
to dismiss the appeal.
13. After having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court in
recording the acquittal, the points which would arise for
my consideration are:-
i. Whether the finding of the Trial Court in
recording the acquittal for the offences
punishable under Sections 7 and 13(1)(d) r/w
13(2) of the Prevention of Corruption Act is
justified?
ii. Whether the appellant has made out grounds to
interfere with the said findings?
14. Before adverting to the facts of the case, now it is
relevant to refer to the proposition of law in respect of
appeal against acquittal. It is settled principle of law that
in the case of appeal against acquittal, the Court shall not
ordinarily interfere with the findings as a matter of
routine. The Court can interfere in the findings where it
notices the perversity and illegality in the findings of
acquittal recorded by the Trial Court.
15. My view has been fortified by the judgment of the Hon'ble
Supreme Court in the case of CHANDRAPPA AND
OTHERS v. STATE OF KARNATAKA1 paragraph No.42
reads thus:
"42.From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court
on the evidence before it may reach its own
conclusion, both on questions of fact and of
law.
(3) Various expressions, such as, "substantial
and compelling reasons", "good and sufficient
grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of
an appellate court in an appeal against
acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the
court to review the evidence and to come to its
own conclusion.
2007 4 SCC 415
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(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court."
16. Now, it is relevant to advert to the facts of the case and
also necessary to have a cursory look upon the evidence
of all the witnesses. It is the case of the prosecution that
PWs.1 and 6 have been entrusted the work of repairing
the road of 12 Kms. The cost was estimated by the
Government a sum of Rs.5,75,000/-. Out of the said
amount, initially Rs.75,000/- was given to them and the
Government had to pay the balance of Rs.5.00 lakhs.
17. It is further stated that PWs.1 and 6 have submitted their
work done certificate and measurement bill and asked the
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accused to clear the bill. However, the accused did not
sign the bill and asked the complainant to complete the
work and submit the report.
18. The evidence of PW.7 clearly indicates that the work of
repairing the road was not completed as on 18.03.2008.
However, PWs.1 and 6 have submitted work done
certificate on 02.02.2008 and trying to influence the
accused to sanction the bill.
19. PW.1 is the complainant, PW.2 is the another panch
witness, PW.3 is a shadow witness. The evidence of
these witnesses is relevant for consideration. According
to PW.1, on 12.03.2008 at about 7.23 a.m., the accused
had called him through his mobile phone and asked him
to come to his house. PW.1 and PW.3 said to have been
gone to the house of the accused. PW.3 was asked to
stand outside the house and PW.1 went inside the house
and as per the direction of the accused, he put the tainted
amount in the cover kept on the table. PW.1 after having
paid the tainted amount gave missed call to the
respondent police, the respondent police have entered
inside the house and conducted the trap and also drawn
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the trap panchanama and seized the amount in presence
of panch witnesses.
20. PW.2 being a panch witness has supported the case of
the prosecution and stated that the tainted currency
notes was kept on the table and it was seized in his
presence.
21. PW.3 is said to be the shadow witness. He had
accompanied the complainant and went to the house of
the accused. However, he says that the complainant
entered inside the house of the accused and he was
trying to pay the amount, however, the accused did not
receive the amount in his hand and went inside the house
and brought the cover and asked the complainant to put
the amount into the cover.
22. On careful reading of the evidence of PWs.1 to 3, it
appears that all these witnesses are consistent that the
tainted amount was on the table at the time of conducting
the trap and seizure mahazar. The evidence of PW.3
indicates that he was standing outside the house and
went inside the house only after the police came to the
spot.
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23. PW.3 states that the accused after having received the
amount in the same hand, he took off measurement book
and C.C Bills to affix his signature. However, those
documents have not been sent for Forensic Laboratory for
analysis.
24. It is relevant to note that mere recovering the amount in
the house of the accused is not sufficient to implicate in
the case, unless, it is proved that there was a demand by
the accused regarding illegal gratification.
25. The defence of the accused that the VIP room of the
inspection bungalow was to be inaugurated on the day
when the alleged incident had taken place. The work of
bringing pooja things was entrusted to the complainant.
After the complainant reached his home, the accused
asked the complainant as to whether he had brought the
item. The complainant affirmatively stated that he had
brought the item and the complainant was asked to put it
in the cover. The defence of the accused may or may not
be correct, however, it is not relevant for consideration.
26. It is needless to say that the prosecution has to prove the
case beyond all reasonable doubt regarding demand of
the illegal gratification to discharge the official favour.
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Even though PWs.1 and 6 have claimed that the work
which was entrusted to them has been completed, the
evidence of PW.7 indicates that on 18.03.2008 the work
was pending and it was not completed. Therefore, it may
be inferred that the prosecution has failed to prove the
demand and acceptance of illegal gratification to
discharge the official duty.
27. In the light of the observations made above, the points
which arose for my consideration are answered as:
Point No.(i) in the "Affirmative "
Point No.(ii) in the "Negative"
28. Hence, I proceed to pass the following:
ORDER
The criminal appeal stands dismissed.
Sd/-
JUDGE
UN
List No.: 1 Sl No.:44
