Karnataka High Court
State Of Karnataka vs Sri K P Puttaswamy on 21 December, 2023
1 CRL.A NO.1622 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1622 OF 2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA
KOLAR
...APPELLANT
(BY SRI. VENKATESH S ARABATTI, SPL PP)
AND:
SRI K P PUTTASWAMY
SON OF SRI PUTTAIAH
AGED ABOUT 54 YEARS
SUPERINTENDENT OF POLICE
KOLAR DISTRICT, KOLAR
RESIDING AT KUPPAHALLI VILLAGE
KASABA HOBLI,
HASSAN TALUK
HASSAN DISTRIC T
.....RESPONDENT
(BY SRI. S.P.KULKARNI, SENIOR COUNSEL FOR
SRI. VASANTHA KUMAR K M, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(1) AND (3)
CR.P.C, 1973 R/W SECTION 27 OF THE PREVENTION OF
CORRUPTION ACT, 1988 PRAYING TO a) GRANT LEAVE TO
FILE THE APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 27.03.2017 IN SPL.C. (CORRUPTION)
NO.13/2011 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KOLAR; b) SET ASIDE THE ORDER DATED
27.03.2017 IN SPL. C (CORRUPTION) NO.13/2011 PASSED BY
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR; c)
2 CRL.A NO.1622 OF 2017
CONVICT THE RESPONDENT / ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTION 13(1)(d) R/W SECTION 13(2)
OF THE PC ACT AND CONSEQUENTLY SENTENCE THE
RESPONDENT / ACCUSED FOR THE CHARGES LEVELED
AGAINST HIM; d) PASS SUCH OTHER ORDER/S DEEMS FIT IN
THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS
OF THE ABOVE APPEAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 26.10.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 378 (1) and (3) of
Cr.P.C r/w Section 27 of the Prevention of Corruption Act,
1988 (for short 'the P.C Act'), the State represented by
Lokayuta Police has challenged the acquittal of
respondent/accused for the offences punishable under
Section 7 r/w Section 13 (1) (d) r/w Section 13 (2) of
P.C. Act.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. A charge sheet came to be filed against the
accused alleging that during the relevant point of time,
he was working as Superintendent of Police, Kolar.
Complainant Prakash was working as Police constable at
Kolar town Police station. On 10.04.2008 he was on
weekly off. However, in the evening he returned and
claiming that he is suffering from ill health, he took MHR
book but thereafter he failed to report for duty. Without
applying for leave, and also without intimating his higher
officer, he remained authorised absent. In this regard, a
departmental enquiry was held against him as per the
directions of accused and a report was given holding that
the charges levelled against him are proved.
3.1 A Show cause notice was issued to the
complainant as to why he should not be dismissed from
service. It is alleged that in this background when
complainant met the accused and requested him to show
leniency, accused demanded and received bribe of
Rs.25,000/-. However, accused passed an order
imposing punishment of compulsorily retirement of the
complainant. On 24.11.2009, when complainant met the
accused and enquired him about the order, accused
demanded additional sum of Rs.10,000/-. Not willing to
pay the same, complainant filed the complaint on
27.11.2009 and on that day, the accused was caught red
handed receiving the tainted money of Rs.10,000/-.
4. Accused pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused,
on behalf of the prosecution, 9 witnesses are examined
as a PWs-1 to 9, Ex.P1 to 11 and MO-1 to 15 are
marked.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence.
7. He has not led any defence evidence.
8. Vide the impugned judgment and order, the
trial Court acquitted the accused holding that the
prosecution has failed to prove the allegations against
the accused beyond reasonable doubt.
9. Being aggrieved by the same, the State has
come up with this appeal, contending that the impugned
Judgment and order are opposed to law, facts and
evidence placed on record. The trial Court has erred In
coming to the conclusion that the demand and
acceptance are not established; no work was pending as
on 27.11.2009; there is Lacuna in the investigation
regarding registration of FIR, which creates doubt about
the case and the voluntary retirement application is not
produced before the Court. The trial court has failed to
appreciate that these reasons cannot enure to the benefit
of accused.
9.1 The trial Court has failed to appreciate that
Ex.P3 proceedings regarding the file maintained in the
office pertaining to the complainant refers to his
application for voluntary retirement dated 10.09.2009. It
also contains the seal of the office of accused
acknowledging the receipt. Despite the same, the trial
Court has erred in holding that the voluntary retirement
application is not produced. The further proceedings in
Ex.P3 demonstrate that on various dates, viz.,
14.07.2009, 01.08.2009, 10.09.2009, 13.10.2009 and
20.10.2009, there have been various activities. Though
the order was ready on 13.10.2009, accused kept it with
him till 20.10.2009. It was not served on the
complainant. As per Ex.P8, the complainant visited the
office of the accused, which clearly prove the allegations
of demand and receipt of illegal gratification.
9.2 The trial Court has erred in not appreciating
the fact that in the absence of certificate under Section
65B of the Evidence Act, though the allegation could not
be proved through the pen camera, voice recorder etc,
the said allegations are proved through the oral evidence
of prosecution witnesses. The trial Court has erred in
attaching undue importance to the fact that the
witnesses were intimated on 26.11.2009 itself, whereas
the complaint was filed on 27.11.2009. The prosecution
case is supported by the evidence of PW-1, 3, 7, 9, the
right hand wash of accused and recovery of tainted
notes, at the instance of accused and therefore, as held
by the Hon'ble Supreme Court in the matter of State of
Andhra Pradesh Vs. P.Venkateshwaralu
(P.Venkateshwaralu)1 the presumption under Section
20 of P.C. Act is required to be drawn. Viewed from any
angle the judgment and order are not tenable and prays
to allow the appeal, convict the accused and sentence
him in accordance with law.
10. In support of his arguments, learned counsel
for complainant has relied upon the following decision:
(i) Chandrappa and Ors. Vs. State of Karnataka
(Chandrappa)2
11. On the other hand, learned counsel
representing the accused has supported the impugned
Judgment and order of the trial Court and prays to
dismiss the appeal.
12. In support of his arguments, learned counsel
for accused has relied upon the following decisions:
(i) N.Raghumurthy Vs. State by Lokayuktha
Police, Mysuru District (Raghumurthy)3
(ii) Shafhi Mohammad Vs. State of Himachal
Pradesh (Shafhi)4
(2015) 7 SCC 283
(2007) 4 SCC 415
2018 (3) Kar.L.J 637
AIR 2018 SC 714
(iii) Anvar P.V. Vs. P.K.Basheer and Ors.
(Anvar.P.V)5
(iv) Sonu @ Amar Vs. State of Haryana
(Sonu @ Amar)6
(v) Harpal Singh @ Chhota Vs. State of Punjab
(Harpal Singh)7
(vi) State of Karnataka Vs. Rahimankhan
Nannekhan Pathan (Rahimankhan)8
(vii) Sri.N.A.Suryanarayana @ Suri Vs.
State by Inspector of Police
CBI/SPE/Bangalore (N.A.Suryanarayana)9
(viii) Madhukara @ Madhu @ Mallesha Vs.
State of Karnataka by Vinobanagara Police
Station, Shimoga (Madhukara)10
(ix) K.H.Thimmappa Vs. Karnataka Lokayukta
Police, Bangalore (K.H.Thimmappa)11
(x) P.Satyanarayana Murthy Vs. District Inspector
of Police & Anr.
(P.Satyanarayana Murthy)12
(xi) Mukhtiar Singh (since deceased) through
his LR Vs. State of Punjab(Mukhtiar Singh)13
(xii) Shivananda Bankolli Vs. State by Lokayukta
Police, Mysore District by the SPP
(Shivananda Bankolli)14
(xiii) Gangamma Vs. State by Lokayukta Police,
Mysore (Gagamma)15
2014 AIR SCW 5695
AIR 2017 SC 3441
(2017) 1 SCC 734
2015 (1) KCCR 898
2019 (1) KCCR 841 (DB)
2018 (4) KCCR 2997
AIR 2015 SC 3549
(2017) 8 SCC 136
2020 (5) KCCR 326
(xiv) N.Vijayakumar Vs. State of Tamil Nadu
(N.Vijayakumar)16
(xv) V.N.Ratheesh Vs. State of Kerala
(V.N.Ratheesh)17
(xvi) V.Sejappa Vs. State by Police Inspector
Lokayukta, Chitradurga(V.Sejappa)18
(xvii) The State of Karnataka Vs. Sri.Sugappa
(Sugappa)19
(xviii) Kanhaiya Lal & Ors Vs. State of Rajasthan
(Kanhaiya Lal)20
(xix) Rajendra @ Rajappa & Ors. Vs. State of
Karnataka (Rajendra @ Rajappa)21
(xx) State by Lokayukta Police Station
Belgaum Vs. Shivarudrappa Basavaneppa
(Shivarudrappa)22
(xxi) State of Karnataka Vs. Shariff (Shariff)23
13. Heard arguments of both sides and perused
the record.
14. Before appreciating the case of the
prosecution and defence of the accused, it is relevant to
2020 (5) KCCR 497
2021 Crl.LJ. 1353
(2006) 10 SCC 617
(2016)12 SCC 150
(2013) 5 SCC 655
2021 (3) KCCR 2545 (SC)
2021 (3) KCCR 2737
2023 (3) KCCR 1828 (DB)
refer to the decision of the Hon'ble Supreme Court in
Chandrappa, wherein para No.42, it laid down the
following general principles regarding powers of Appellate
Court while dealing with an appeal against an order of
acquittal:
(i) An Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the
order of acquittal is founded.
(ii) The Code of Criminal Procedure 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 question of fact and of law.
(iii) 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 power of an Appellate Court in an appeal
against acquittal. Such phraseologies are known in the
nature of "flourishes of language" to emphasize 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.
(iv) 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.
(v) If two reasonable conclusions are possible on the
basis of evidence on record, the Appellate Court should
not disturb the finding of acquittal recorded by the trial
Court."
15. Keeping in mind the above general principles,
it is necessary to examine the oral and documentary
evidence placed on record.
16. The undisputed facts are that complainant was
working as a constable and remained unauthorized
absent. In his capacity as the Disciplinary Authority,
accused initiated disciplinary proceedings against the
complainant. In fact, accused admitted the allegations
and the Enquiry Officer submitted report stating that the
charges levelled against the complainant are proved.
Based on the same, accused issued a show cause notice
to the complainant as to why the report should not be
accepted and he should not be imposed with maximum
punishment.
17. It is alleged that in this regard, the
complainant met the accused and requested him to take
a lenient view. He demanded and received a sum of
Rs.25,000/- and despite receiving the said amount, he
passed order imposing punishment of compulsory
retirement; Once again complainant met him on
24.11.2009 and accused made a demand for additional
sum of Rs.10,000/- to pass a favourable order and on
27.11.2009 received the said amount in the form of bait
money.
18. Of course accused has disputed the allegation
of demand and receipt of bribe. He has set up a defence
that on 27.11.2009, under the guise of meeting him, the
accused has kept the tainted notes on his table without
his knowledge and the same have been recovered. The
accused has also taken up a defence that as on
27.11.2009, no work pertaining to the complainant was
pending with him and as such there was no occasion for
the accused to demand and received Rs.10,000/- to pass
a favourable order. In the light of the defence set up by
the accused, the burden is on the prosecution to prove
that as on 27.11.2009, the work pertaining to the
complainant was pending with the accused and in that
connection he demanded and received bribe in a sum of
Rs.10,000/-.
19. PW-2 Manjunath is the Second Division
Assistant working at the office of Police Superintendent,
Kolar. His evidence prove the fact that on 10.09.2009,
complainant came and gave a representation (Reply to
Show cause notice) and he has issued acknowledgement.
He has also deposed that on that day complainant
requested to give acknowledgement in respect of a
representation given to the accused. Though initially he
refused to give acknowledgement, after accused orally
directed him to give acknowledgement, he has given the
acknowledgement to the complainant.
20. Ex.P3 is the file seized from the office of the
accused pertaining to the departmental enquiry held
against the complainant. It is collected through PW-8
Sri.Phaneender Singh, Addl.Police Superintendent. It
consists of page 77 to 169. Page No.83 and it's back
page is the reply given by the complainant to the show
cause notice. At the end of the same, he has sought for
voluntary retirement on Medical ground. It bears the
endorsement dated 10.09.2009 of the office of
Superintendent, Kolar for having received the same.
During the cross-examination of PW-7 K Ravi Shankar
the Investigating Officer, it is elicited by the defence that
on 27.11.2009 from the chamber of accused, he has
seized the visitor's slip pertaining to the complainant.
21. These documents coupled with the evidence of
PW-1 and 2 prove the fact that on 10.09.2009 as well as
on 27.11.2009, the complainant has visited the chamber
of accused and on 10.09.2009, the complainant has
given reply to the Show cause notice and in the said
reply, he has also sought for voluntary retirement.
Therefore, the findings of the trial Court that the
prosecution has not produced the voluntary retirement
application given by the complainant is incorrect. There
is no prescribed proforma for seeking voluntary
retirement. While giving his explanation to the show
cause notice, incidentally, the complainant has sought for
granting voluntary retirement instead of passing any
harsh order affecting the benefits which he is entitled on
his retirement.
22. So far as the work pending with the accused
pertaining to the complainant, though on 13.10.2009,
the accused has passed orders (signed by him on
20.10.2009) at page Nos.81 and 82, imposing
punishment of compulsory retirement on accused, at
page Nos.84, 85 and 86 of Ex.P3, the accused has signed
the said order on 13.10.2009, but his signature is scored
off. Admittedly, it was not served on the complianant.
Page No.78 of Ex.P3 is extract of e-mail dated
13.11.2009 sent on behalf of the accused i.e
Superintendent of Police addressed to the PSI, Kolar City
Police station, stating that the order imposing
punishment of compulsory retirement on the complainant
is issued on 13.10.2009 and it is sent to him in duplicate
to serve a copy on the complainant and to return the
other copy with the acknowledgement for having served
on the complainant. However, the same is not returned
duly served and therefore he is directed to do the needful
at the earliest and return the acknowledgement. This
document indicate that though the order imposing
punishment of compulsory retirement on complainant
was issued on 13.10.2009, even as on 13.11.2009 it was
not served on the complainant. As on 27.11.2009 also it
was not served on the complainant. Consequently, the
matter i.e the work pertaining to complainant was still
pending with the accused.
23. Therefore, the finding of the trial Court that no
work was pending with the accused as on the date of
complaint is incorrect. The accused has not placed any
material on record to show that the punishment order
was duly served on the complainant. Since the said order
was not served on the complainant and copies were not
sent to the higher Officers, it was still in the power of the
accused to change the order and under the said premise,
the complainant was in a position to believe that accused
is going to pass favourable order by receiving the bribe
amount.
24. The trial Court has disbelieved the case of the
prosecution for the reason that though the case was
registered on 27.11.2009, in the notice issued to the
Director of KGID to send two witnesses on 26.11.2009,
the crime number of the case is noted and it creates
doubt as to the veracity of prosecution case. At the
outset it is relevant to note that accused was no other
than a Police Superintendent working at Kolar District.
Complainant was an employee of police department
working under him. From the inception the complainant
has entertained a doubt that in his capacity as the head
of the police department of the District, if along with him
the shadow witness enter his chamber, the accused may
become suspicious and may not receive the bribe amount
in the presence of a third person. This fact is forthcoming
in the complaint itself.
25. In the complaint, the complainant has also
stated that after the recent trap at the District police
office, Kolar the accused has become cautious and not
using words to demand bribe and on the other hand, he
writes the amount of bribe which is required to be paid
on paper and show it. In his case also, on 24.11.2009,
when he went to the chamber of accused and requested
him to convert the order of compulsory retirement into
one of voluntary retirement, he shook his head and
wrote the numeral '10' on a newspaper and when
complainant questioned him whether he mean
Rs.10,000/-, again accused shook his head and for this
reason, complainant could not record their conversation.
Having regard to the fact that accused was a powerful
Police Officer heading the entire District, doubting that if
he files complaint before the Lokayuktha office at Kolar,
accused may come to know and there would be danger
to his life, complainant has chosen to file the complaint
at Bengaluru. The evidence led by the prosecution
regarding the trap of accused is required to be
appreciated in the light of the above peculiar facts and
circumstances.
26. The evidence of the Investigating Officer i.e.,
PW-7 K.Ravishankar reveal that, for this reason the
complainant has approached the Superintendent of
Police, Lokayuktha, Bengaluru and in turn on
26.11.2009, at 4.30 p.m, the Superintendent of Police,
Lokayuktha, Bengaluru summoned the Investigating
Officer and without disclosing the facts directed him to
secure two witnesses. In all probabilities anticipating
registering of case on the same day, the Investigating
Officer might have noted the next crime number in the
notice sent to the Director of KGID while requesting him
to depute two witnesses. The office copy of this letter is
not marked. However, it is available in the file.
27. The evidence of PW-7 i.e., the Investigating
Officer reveal that by the time the witnesses came, it
was evening and when it was brought to the notice of the
Superintendent of Police, he said that the complainant
has not yet come and as it is already evening he advised
the Investigating Officer to get the witnesses on the next
morning. Accordingly, he directed the witnesses to come
at 7.00 a.m., on the next day. The evidence of PW-7 also
disclose that he did not meet the complainant on
26.11.2009 and met him on the next day i.e., on
27.11.2009. He has specifically deposed that on the next
day at 7.00 a.m, the Superintendent of Police,
Lokayuktha, Bengaluru called him to his chamber and
handed over the complaint and till then complainant had
not met him. It is pertinent to note that the defence
counsel has not at all cross-examined the Investigating
Officer, inviting his attention with regard to noting the
crime number in the letter addressed to the Director of
KGID on 26.11.2009 itself i.e., even before registering
the case and seeking his explanation. The defence has
also not demonstrated as to how the interest of the
accused was prejudiced for this reason. Even the trial
Court has not given a definite findings as to what
prejudice is caused to the accused.
28. The evidence of PW-5 prove the sanction
issued against the accused. At the relevant point of time,
he was working as Under Secretary, Ministry of Home,
Central Government. He has deposed that on
27.08.2010, a request letter was submitted by the
prosecution to issue sanction against the accused. It was
accompanied by the report of the Enquiry Officer,
statement of witnesses and connected documents. After
verifying the same, he placed it before the Home Minister
on 30.10.2010. After verifying the same, on 03.09.2010,
the Home Ministry gave consent for issuing sanction. In
this regard on 15.09.2010, the opinion of the Central
Vigilance Commission was secured. On 14.01.2011, the
Central Vigilance Commission gave consent. Accordingly,
on 21.01.2011, sanction order was issued as per Ex.P6,
in the name of President of India. During his cross-
examination, PW-5 has denied that all the relevant
papers were not placed before the Ministry of Home,
while securing sanction. Thus, the testimony of PW-5
prove that a valid sanction was issued for prosecution of
the accused.
29. Now coming to the allegations that accused
demanded and received bribe in a sum of Rs.10,000/-
from the complainant for converting the punishment of
compulsory retirement into voluntary retirement.
30. During the course of his evidence,
complainant who is examined as PW-1 has deposed that
after the pre-trap mahazar proceedings, they proceeded
to the office of accused at Kolar. After sending visitor's
slip to the accused and with his permission he entered
the chamber of accused and saluted him. He told accused
that as per his demand he has brought Rs.10,000/-, for
which accused lifted a file (gÀlÄÖ) gesturing him to keep
the money on the table and after he kept the bait money
on his table, accused covered it with the file (gÀlÄÖ).
Accused said that he would get the file from GHA and do
the needful and once again after saluting him,
complainant came out of the chamber of accused.
31. The testimony of complainant in the
examination-in-chief does not reveal that accused
demanded the bribe, though there is an indication that
he received the same without any resistance. During his
cross-examination, complainant has admitted that the
door of chamber of accused is having an auto closure and
it closes the door automatically. Thus, the evidence of
complainant does not establish that on 27.11.2009, when
he entered the chamber of accused, he demanded the
bribe amount. Thus, the prosecution has failed to prove
the demand.
32. The object and purpose of a shadow witness
accompanying the complainant is to corroborate the
evidence of complainant. However, the evidence of PW-3
H.T.Shankaregowda, shadow witness reveal that he did
not enter the chamber of accused and on the other hand
stopped near the door of his chamber. Consequently,
when complainant entered the chamber of accused, he
did not have the benefit of observing, whether accused
demanded and received the bribe amount, either by
words or by gesture. Consequently, his evidence is
confined to what the complainant disclosed after
returning from the chamber of accused. Therefore, the
evidence of PW-3 H.T.Shankaregowda, in his capacity as
shadow witness is not of much help to the prosecution
case.
33. It appears for the reason that the accused
may not demand and receive the bribe amount in the
presence of shadow witness, the Investigating Officer has
taken precaution and fixed a button camera to the shirt
of complainant. He has made a small hole in the hand
bag of complainant and fixed a pen camera to it.
Similarly he has given a digital voice recorder to the
complainant with a direction to switch it on and record
the conversation between him and accused. Therefore, in
the absence of the corroboration from the shadow
witness, the prosecution is required to take corroboration
from these electronic devices.
34. After the trap, the Investigating Officer has
displayed the recording made in button camera, pen
camera and the conversation recorded in voice recorder
and PW-8 S.R.Phaneender Singh has identified the
accused in the videos and his voice in the voice recorder.
The Investigating Officer has copied the contents of
button camera, pen camera and voice recorder in the
CDs and they are marked as MOs-2, 3 and 5. However,
these copies have not been certified as required under
Section 65B of the Evidence Act and in this regard the
learned counsel for accused has relied upon Anvar P.V,
Harpal Singh, wherein it is held by the Hon'ble
Supreme Court that without certificate under Section
65B, the said evidence cannot be looked into. However,
in Sonu @ Amar, the Hon'ble Supreme Court held that
the objection to the admissibility of electronic evidence
without certificate under Section 65B (4) is to be made
before marking. Failure to object amount to waiver and
cannot be raised at belated stage since it relates to mode
or method of proof of document. Admittedly, in the
present case the accused has not raised any objection for
marking the CDs at MOs-1 to 5 and thereby waived his
right to object for admissibility of the same. Therefore,
there is no impediment to look into these CDs more
particularly MOs-2, 3 and 5.
35. I have viewed MOs-2, 3 and 5. In fact in the
trap mahazar at Ex.P3, the Investigating Officer has
extracted the relevant portion of the video recording and
conversation in the audio recording forthcoming in them.
MOs-2 and 3 relates to video recording of the interaction
between complainant and accused in the chamber of
accused. Complainant has specifically deposed that when
he entered the chamber of the accused and told him that
he has brought the amount as demanded by him and
accused raised a file gesturing to keep the amount below
it and when he placed the bait money on the table,
accused kept back the file. However, both button camera
and pen camera have not focused on the face of the
accused and therefore there is no occasion to record
whether accused made a demand by gesture. However,
the part wherein accused lifted the file below which the
complainant kept the bait money after which accused
released his hand from the file is recorded.
36. There is also recording of the voice of accused
in both button camera and pen camera as well as in the
voice recorder as per MOs-2, 3 and 5 respectively,
wherein he says that "it was not required" (K£ÀÄ
¨ÉÃPÁVgÀ°è®è). This piece of conversation of accused
contradict the allegations made by the complainant that
accused had demanded Rs.10,000/- to convert the order
of compulsory retirement into voluntary retirement. If
really there was demand by the accused and the
payment made by complainant was as per the said
demand, accused would not have stated that "it was not
required". This supports the statement of accused that
there was no demand by him, but complainant gave the
money, although he did not object for payment of the
same and by lifting the file (gÀlÄÖ) received it. Of course,
the conduct of accused in passively receiving the bait
money is not appreciable. However, fact remains that the
prosecution has not proved the demand as required
under law.
37. It is pertinent to note that complainant had
remained unauthorized absent and in his capacity as the
Disciplinary Authority, domestic enquiry was conducted
against him at the instance of accused and he is found
guilty and in fact punishment of compulsory retirement
was imposed, which the complainant wanted to be
changed to voluntary retirement. During his cross-
examination, a suggestion is made to the complainant
that a criminal case was registered against him for
attempt to murder his mother and brother and in this
regard departmental enquiry was held and he was
punished. It is pertinent to note that complainant has not
denied this suggestion but replied that he do not
remember it. In the circumstances, the complainant had
reason to grind axe against the accused and in the said
circumstances corroboration to his evidence is necessary.
38. Neither during the course of his evidence, the
Investigating Officer nor PWs-1 and 3 i.e., the
complainant and shadow witness have deposed that the
Investigating Officer has instructed the complainant to
pay the bait money only if demanded by the accused,
although in the pre-trap mahazar at Ex.P2 under the
caption "Instructions given to the complainant", it is
stated that the Investigating Officer directed the
complainant to pay the bait money only if demanded by
the accused. As held by the Hon'ble Supreme Court in
P.Satyanarayana, when demand is not proved accused
cannot be convicted. Similarly, in Mukhtiar Singh, the
Hon'ble Supreme Court held that when the evidence of
complainant regarding demand and acceptance is not
corroborated by the evidence of shadow witness,
conviction is not sustainable. In V.Sejappa, the Hon'ble
Supreme Court held that proof of demand of illegal
gratification is a sine qua non for constituting an offence
under Section 7 and mere recovery of tainted money
from the accused is not sufficient to convict him.
39. On re-appreciation of the entire oral and
documentary evidence placed on record, this Court is of
the considered that this is not a fit case to interfere with
the order of acquittal recorded by the trial Court. In the
result, the appeal fails and accordingly, the following:
ORDER
(i) Appeal filed under Section 378(1)
and (3) of Cr.P.C r/w Section 27 of
the Prevention of Corruption Act is
dismissed.
(ii) The impugned judgment and order
of acquittal dated 27.03.2017 in
Spl.C.(Corruption) No.13/2011 on
the file of Prl.District and Sessions
Judge, Kolar is confirmed.
(iii) The Registry is directed to send
back the trial Court record along
with copy of this judgment
forthwith.
Sd/-
JUDGE
RR
