Karnataka High Court
State Of Karnataka vs Sri H Puttahanumaiah on 5 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 27 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 27 OF 2018
BETWEEN:
STATE OF KARNATAKA,
RERPESENTED BY POLICE INSPECTOR,
KARNATAKA LOKAYUKTA,
BENGALURU.
...APPELLANT
(BY SRI. VENKATESH .S. ARABATTI, SPL.PP)
AND:
1. SRI. H. PUTTAHANUMAIAH
@ PRAVEEN,
SON OF SRI.M. HANUMANTHAIAH,
AGED ABOUT 43 YEARS,
REVENUE INSPECTOR,
PANATTHUR CIRCLE,
BBMP OFFICE, BELLANDUR
BENGALURU.
Digitally RESIDENT OF NO.9, 1ST MAIN ROAD,
signed by RAMACHANDRAPURA,
SOWMYA D BENGALURU-560 021.
Location:
2. SRI. OBALESH,
High Court
of SON OF LATE SRI. MUNIYAPPA,
Karnataka AGED ABOUT 40 YEARS,
VILLAGE ASSISTANT,
DODDAKANNALLI, PANATTHUR CIRCLE,
BBMP OFFICE, BELLANDUR,
BENGALURU.
PERMANENT RESIDENT OF NO.8,
JANATHA COLONY,
DODDAKANNALLI, SARJAPURA ROAD,
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CRL.A No. 27 of 2018
KARMALAM POST,
BENGALURU-560 035.
...RESPONDENTS
(BY SRI. AMAR CORREA, ADVOCATE, R2 IS SERVED)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 24.08.2017 IN
SPL.C.C.NO.132/2012 PASSED BY THE LXXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT
UNDER PREVENTION OF CORRUPTION ACT, 1988, BENGALURU.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State through Lokayukta
police, Bangalore challenging the judgment of acquittal
passed by LXXXVII Additional City and Sessions Judge
/ Special court under P.C.Act, Bangalore in
Spl.C.C.No.132/2012 dated 24.08.2017.
2. For the sake of convenience, the parties
herein are referred with original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case
are as under:
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That the accused No.1 was working as a revenue
inspector in Panatthur Circle, BBMP Office, Bellandur,
Bengaluru, while accused No.2 was working a village
assistant in Doddakanalli, Panatthur Circle, BBMP
Office, Bellandur, Bengaluru. Both the accused are the
public servants. It is further asserted that CW4-
Penchalareddy has submitted an application before
accused No.1 for entering the land conversion in
pahanies with respect to Sy.No.128/12 measuring 29
guntas situated in Bhoganahally Village. According to
the prosecution, the accused has not disposed of the
said application and CW4 has authorized complainant /
CW1 - Naveen Kumar to attend the said work. When the
complainant approached accused No.1, the accused
No.1 has demanded Rs.20,000/- from complainant to
do official favour. Then the complainant intimated the
matter to Lokayukta police. Later on, a voice recorder
was handed over to the complainant with a direction to
him to approach the accused No.1 once again and
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record the conversation to ascertain the genuineness of
the allegation. Again the complainant met the accused
No.1 and accused No.1 again demanded bribe amount
and the same was recorded in the voice recorder. Then
the complainant on 18.07.2011 went to Lokayukta office
and filed a complaint against accused No.1.
4. On the basis of the complaint, a crime was
registered in Crime No.26/2011 and First Information
Report came to be issued. Thereafter, the Investigating
Officer secured two mahazar witnesses and in their
presence, a entrustment mahazar was drawn wherein
the complainant has produced Rs.20,000/- and the
serial number of Rs.20,000/- was recorded. They were
smeared with phenolphthalein powder and then they
were kept in the shirt pocket of the complainant with a
direction that complainant should approach the
accused No.1 and only in case of demand, he should
pay the amount and pass a signal.
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5. Then the complainant along with shadow
witness approached accused No.1 and accused No.1
again demanded the bribe amount. It is also asserted by
the prosecution that a pen camera along with voice
recorder was also given to the complainant for recording
the entire event. When complainant approached
accused No.1, accused No.1 directed him to pay the
amount to accused No.2 and accused No.2 received the
said amount. Then they were apprehended and the
hand watch of accused No.2 was taken, which was
tested positive to phenolphthalein test. The tainted
amount was also recovered from the pant pocket of
accused No.2 and a statement was also recorded. A
detailed trap mahazar was also drawn and then both
the accused were arrested and proceedings were
continued. Subsequently, the Investigating Officer
alleged to have transferred the data in pen camera and
voice recorder to a Compact Disk in presence of the
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witnesses and he has also recorded the statement of the
witnesses and after obtaining the sanction submitted
the charge sheet against the accused.
6. The accused were initially arrested, but
subsequently were enlarged on bail. The prosecution
papers were furnished to the accused as contemplated
under Section 207 of Code of Criminal Procedure
(hereinafter referred to as 'Cr.P.C' for short) by the
learned Special Judge. The charge under Section 7, 8,
13(1)(d) read with Section 13(2) of Prevention of
Corruption Act, 1988 (hereinafter referred to as 'the Act'
for short) is framed against both the accused and same
was read over and explained to the accused. The
accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, the
prosecution has examined in all 8 witnesses and also
placed reliance on 43 documents and 12 Material
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Objects. During the cross-examination, Ex.D1 to Ex.D3
were also got marked.
8. After conclusion of the evidence of the
prosecution, the statement of accused under Section
313 of Cr.P.C is recorded to enable the accused to
explain the incriminating evidence appearing against
them in the case of the prosecution. The case of the
accused is of total denial and they did not choose to
lead any defence evidence in support of their claim.
9. After having heard the arguments and after
appreciating the oral and documentary evidence, the
learned Special Judge vide impugned Judgment
acquitted both the accused for the offences punishable
under Section 7, 8, and 13(1)(d) read with Section 13(2)
of the Act. Against this judgment of acquittal, the State
is before this court by way of this appeal.
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10. Heard the arguments advanced by the
learned Special Public Prosecutor appearing for
Lokayukta and the learned defence counsel. Perused the
records.
11. The learned Special Public Prosecutor
appearing for the Lokayukta would contend that PW1 is
the complainant while PW2 is the second pancha and
PW3 is the shadow witness and all these witnesses have
supported the case of the prosecution and corroborated
with each other. He would also contend that the tainted
amount was recovered from the custody of accused No.2
and there is no proper explanation. He would contend
that trap was successful and Ex.P5 is the statement of
the accused, which does not explain any defence at all
and the learned Special Judge only on the ground that
pen camera and voice recorder transcriptions are not
produced and Section 65B of the Indian Evidence Act,
1872, certification is not made, has acquitted the
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accused, which has resulted in miscarriage of justice.
He would contend that the evidence of PW1 to PW3 is
corroborated with the evidence of PW4 and PW8 and as
such, he would seek for setting aside the impugned
judgment of acquittal and sought for convicting the
accused / respondents herein.
12. On the contrary, learned counsel appearing
for the respondents / accused would contend that the
allegations were pertaining to pending work.
Rs.20,000/- bribe was said to have been demanded but
on records and admittedly, the work was completed on
25.06.2011 by accused No.1 and there was no work
pending with accused No.1. He would also contend that
the conversation recorded and especially the pen
camera transcriptions were not produced, which clearly
disclose that the demand and acceptance is not proved
and withholding the material evidence amounts to
drawing adverse inference against the prosecution. He
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would also invite the attention of this court to the
evidence of PW1 to PW3 to show that their evidence is
not corroborative with each other, but it is inconsistent
and contradictory. He would also contend that from
evidence of PW2 and PW3, it is evident that the entire
procedure of pre-trap and post-trap mahazar was not
done initially, but it was subsequently prepared in the
Lokayukta office after the alleged trap, which completely
demolish the theory of the prosecution. He would
further invite the attention to the admissions given by
PW4, PW5 and PW7 that no work was pending with
accused as work was attended on 25.06.2011 itself. He
would also invite the attention of the court that lot of
improvements were made in the evidence of PW1
regarding demand of Rs.25,000/-, when he approached
along with voice recorder subsequently on 18.07.2011
but that transcriptions are also not produced and it is
also an improvement. He would also submit that there
is inconsistent evidence regarding place of payment of
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the amount and hence, he would contend that the view
taken by the learned Special Judge is also a possible
view and when two views are possible, the view
favourable to the accused shall prevail and need not be
disturbed. Hence, he would seek for dismissal of the
appeal.
13. After hearing the arguments and after
perusing the oral and documentary evidence, now the
following point would arise for my consideration:
(i) Whether the judgment of acquittal
passed by the trial court is perverse,
arbitrary and erroneous so as to call
for any interference by this court?
14. It is the specific case of the prosecution that
the accused No.1 has demanded bribe amount of
Rs.20,000/- from the complainant pertaining to entry of
conversion of land in Sy.No.128/12. It is also asserted
that on 18.07.2011, the trap was laid down and it was
successful and amount was recovered from the custody
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of the accused No.2. The evidence of PW1 discloses that
accused No.2 never demanded any bribe from the
complainant and the allegations were regarding demand
made by accused No.1 and the accused No.2 aiding
accused No.1 by receiving the amount on behalf of
accused No.1.
15. PW1 i.e., the complainant in his evidence
specifically deposed that he is working under CW4 and
CW9 has filed an application on 24.05.2011, but in
what capacity CW9 filed an application is not at all
forthcoming as admittedly CW4 is the owner of the land
bearing Sy.No.128/12. PW1 specifically asserted that on
16.07.2011, he contacted accused No.1 over the phone
and accused No.1 demanded bribe of Rs.20,000/-. This
assertion discloses that the complainant has not met
accused No.1 in person. It is his assertion that he
contacted accused No.1 over phone, but the complaint
allegations are entirely contrary wherein in the
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complaint it is asserted that on 01.07.2011, CW9 viz.,
Venkatesh contacted accused No.1 over phone and later
on he again personally met accused No.1 wherein the
demand was made and that fact was reported by CW9
to complainant, but the evidence given by the
complainant is completely contrary wherein he asserts
that he contacted accused No.1 over phone. Even if the
said submission is accepted, then nothing prevented the
investigating agency from securing the call details of the
phone number of the complainant, accused No.1 as well
as CW9 to show that there was any conversation
between them on 01.07.2011 and 16.07.2011 as
asserted. The allegations of complaint clearly disclose
that the complainant never met the accused and there
was no demand from the complainant prior to
18.07.2011.
16. Further PW1 in his cross-examination
specifically asserted that he has not visited the office of
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accused No.1 and accused No.2 in connection with
entry of RTC. His cross-examination further discloses
that the contents of button camera and voice recorder
were transmitted to a compact disk in Lokayukta office,
but these material documents especially the
transcription pertaining to button camera are not
produced, which is very much fatal to the case of the
prosecution.
17. Further, PW1 in his examination-in-chief
itself specifically deposed that he contacted accused
No.1 outside the Taluk office, but as per the case of the
prosecution, the demand and acceptance was made in
the Taluk Office. Further his cross-examination reveals
that when he met accused No.1 regarding conversion of
the property, the accused No.1 demanded Rs.25,000/-.
This is new version invented by the complainant which
is not found in the trap mahazar. Apart from that in the
further cross-examination, PW1 admitted that he did
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not have knowledge of the status of the application as
on 16.07.2011 and both CW4 and CW9 have not
informed him about this aspect. He further admitted
that he has not verified the actual status of the
application.
18. Further, this witness claims that CW2 and
CW3 viz., the pancha witnesses reached the Lokayukta
office at 4.00 p.m. and they went to Taluk office by 4.30
p.m., but as per the case of the prosecution, CW2 and
CW3 went to Lokayukta office between 2.00 p.m. or
2.30 p.m. Further, he assets that he has not met
accused No.1 on 18.07.2011 before he went to Taluk
office along with Lokayukta officials, but he had
contacted him over the phone on that day. Even the call
details of this conversation are also not secured by the
Investigating Officer for the reasons best known to him.
19. PW2 is a second pancha and he has deposed
regarding drawing an entrustment mahazar in the
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Lokayukta office and his evidence discloses that they
went to Lokayukta office at 2.30 p.m., but PW1 speaks a
different story. His evidence further discloses that the
contents of button camera are displayed with the help of
a computer. Then all the visual proceedings of trap
should have been recorded in button camera and why
the said material evidence is not produced is not at all
forthcoming. Further, this witness claims that when
PW1 spoke to accused No.1 over cell phone, he heard
that accused No.1 has demanded the bribe amount of
RS.20,000/-. Even the Investigating Officer did not
bother to ascertain the mobile number of accused No.1
and the complainant. The cross-examination of PW2
further discloses that he has seen accused No.1 only
when the Lokayukta police bought him to Lokayukta
office. Then question of trap mahazar being conducted
in his presence becomes a false story. He further
admits that in his presence, Lokayukta office have not
enquired with accused No.1, but Ex.P5 speaks a
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different story. Importantly, PW2 admits that he put
signature on trap mahazar as well as entrustment
mahazar in the Lokayukta office after they returned to
Lokayukta office after the trap. This admission
completely destroys the theory of trap as asserted by the
prosecution. According to the prosecution trap mahazar
was drawn at Taluk office itself but PW2 speaks a
different story and this statement was not disputed by
the prosecution by treating the witness hostile in this
regard.
20. PW3 is a shadow witness and he is a material
witness to say regarding demand and acceptance. He
has deposed regarding pre trap mahazar procedure and
proceeding to trap, but his evidence discloses that
complainant alone approached the accused No.1 and he
do not know the conversation between accused Nos.1
and 2 and complainant. His evidence discloses that
when they went to K.R.Puram office, PW1 was inside for
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about 15 minutes and subsequently, the alleged trap
was held. Further, as per this witness he counted the
notes smeared with phenolphthalein powder and his
hand wash was taken while drawing an entrustment
mahazar, but PW2 claims that she counted the
phenolphthalein smeared notes and her wash was
taken. Both these stands are inconsistent and contrary
to each other.
21. Further, as per the case of the prosecution,
the trap was held inside the office, but the evidence of
PW3 clearly discloses that the trap was held outside the
office in the compound premises. These stands are also
inconsistent and contrary. To this extent, the witness
was treated as hostile witness by the learned Special
Public Prosecutor, but the witness denied the
suggestion made by the prosecution that trap was held
inside the office. Further, this witness specifically
deposed in his cross-examination that after the trap
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CW18 i.e., the Investigating Officer intimated that
further proceedings would be conducted in the
Lokayukta police station and no documents were
prepared in the K.R.Puram Office and except attendance
register, no records are seized from K.R.Puram office.
Further, he has also admitted that after PW1 coming
out of K.R.Puram office, he did not disclose anything
before him and this again is contrary to the case of the
prosecution. Further, he asserts that only after
apprehension of accused Nos.1 and 2, he saw them for
the first time. When he being a shadow witness what he
was doing when the conversation between accused No.1
and complainant was going on is not at all forthcoming.
22. The prosecution relies on the evidence of
PW1, PW2 and PW3 and it runs contrary to each other
and the evidence of Investigating Officer viz., PW7 runs
contrary to the evidence of PW1 to PW3.
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23. PW4 viz., Gopalaswamy is a special Tahsildar
and his evidence discloses that the conversion order
was passed by accused No.1 on 25.06.2011 itself and
no work was pending. PW5 was the sanctioning officer
while PW6 is the owner of the land and he is not an eye
witness to the trap. Interestingly, PW6 viz., Penchala
Reddy in his cross-examination admitted that in RTC
there is reference in column No.10 that mutation order
was made on 25.06.2011. He further asserts that he
was aware that after 25.06.2011, when the mutation
order was passed, revenue inspector has got no act to
perform on his part. If PW6 was having knowledge of
these aspects, then he did not explain as to why he
directed the complainant to approach the accused No.1,
when he had knowledge of completion of work. PW7 is
the Investigating Officer and he has deposed regarding
investigation done by him while, the evidence of PW8
discloses that the work was completed on 25.06.2011
itself.
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24. The learned Special Public Prosecutor would
contend that the evidence of PW1 to PW3 is consistent,
but the evidence discloses that the trap mahazar was
not drawn at the spot, but it was drawn in the
Lokayukta office, which is admitted by PW2 and PW3.
No proper explanation is offered by the Investigating
Officer in this regard. To this extent, both these
witnesses were not even treated as hostile witnesses.
The prosecution has placed reliance on a decision
reported in 'DHANESHWAR NARAIN SAXENA VS.
DELHI ADMINISTRATION', AIR 1962 SC 195. There is
no dispute regarding the proposition of law laid down in
the said decision and the said decision clearly discloses
that the demand need not be pertaining to his own duty
and valuable thing or pecuniary advantage in respect of
other issue also amounts to illegal gratification, but that
was not the case made out in the instant case and as
such, the principles enunciated in the above cited
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decision would not come tot eh aid of the prosecution in
any way.
25. He has further placed reliance on a decision
in 'DHANVANTRAI BALWANTRAI DESAI VS. STATE
OF MAHARASHTRA', AIR 1964 SC 575. There is no
dispute regarding the proposition of law laid down in the
said case and drawing of presumption is mandatory,
when it is shown that the amount was received by the
accused and it is not a legal remuneration, but in the
instant case, the evidence on record does not establish
that accused No.1 has demanded the amount and
accused No.2 has received the said amount on behalf of
accused No.1. The material evidence in this regard in
the form of button camera and voice recorder was
withheld by the prosecution and an adverse inference is
required to be drawn as against them. As such,
considering the facts and circumstances, the said
principles cannot be made applicable to the case in
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hand. He has further placed reliance on a decision
reported in 'V.D.JHINGAN VS. STATE OF UTTAR
PRADESH' AIR 1966 SC 1762 but the facts and
circumstances being entirely different do not come to
the aid of the prosecution in any way.
26. He has further placed reliance on an
unreported decision of this court in Crl.A.No.748/2011
dated 21.04.2022 (MR.H.C.SRIDHARA VS. STATE OF
KARNATAKA), but in the said case the evidence was
consistent and the shadow witness and other witnesses
have fully supported the case of the prosecution, but in
the instant case, the evidence is inconsistent and
material evidence is withheld by the prosecution. As
such, the principles enunciated in the above cited
decision would not assist the prosecution in any way.
27. He has also relied on a constitutional bench
decision of the Hon'ble Apex Court in 'NEERAJ DUTTA
VS. STATE OF DELHI', (2023) 4 SCC 731. The same
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citation is also relied upon by the learned counsel for
the accused. There is absolutely no dispute regarding
proposition of law and in the absence of direct evidence,
the demand and acceptance can be proved by
circumstantial evidence. But in the instant case direct
evidence is available but it is not trustworthy so as to
accept the case of the prosecution. Apart from that, the
evidence given by the complainant is contrary to the
complaint allegations as he never met accused No.1
personally prior to trap. All along, he alleged to have
contacted accused No.1 over mobile phone, but the
Investigating Officer has not bothered to collect the call
details. Hence, the principles in the above cited decision
will not assist the prosecution in any way.
28. Lastly, the learned Special Public Prosecutor
relies on a decision of the Hon'ble Apex Court in
'CHANDRAPPA VS. STATE OF KARNATAKA', (2007) 4
SCC 415. There is no dispute regarding the power of the
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appellate court to re-appreciate, review or reconsider the
evidence and interfere with the Judgment of acquittal,
but the said decision clarifies that when two views are
possible from the evidence on record, one taken by the
trial court in favour of the accused should not be
disturbed by the appellate court. In the instant case,
considering the lacuna in the evidence and withholding
of material evidence by the prosecution, the view taken
by the learned Special Judge cannot be said to be
erroneous or arbitrary and the appreciation made by the
learned Special Judge cannot be termed as a perverse
finding so as to interfere with the judgment of acquittal.
Hence, the principles enunciated in the above cited
decision would rather help the accused / respondent,
but not the prosecution.
29. The learned counsel for the respondent has
placed reliance on a decision in 'ANVAR P.V. VS.
P.K.BASHEER AND OTHERS', (2014) 10 SCC 473,
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wherein the Hon'ble Apex Court has considered the
relevancy of certification under Section 65A and 65B
and 62 of the Indian Evidence Act, 1872 pertaining to
electronic records, but when the documents itself were
not produced and tendered in evidence, question of
considering non issuance of certification does not arise
at all and the principles could have been relevant had
the prosecution placed the material records of
transcriptions of voice recorder and button camera
before the court.
30. On appreciation of the oral and documentary
evidence, it is evident that the learned Special Judge
has appreciated the oral and documentary evidence in
its proper perspective and he has analyzed the evidence
in detail with reference to each document. The view
taken by the learned Special Judge cannot be said to be
perverse or arbitrary and considering the inconsistent
and contradictory evidence of PW1 to PW3, the view
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taken by the learned Special is also a possible view. As
such, in view of the above cited decision in
CHANDRAPPA's case, the finding of the trial court
cannot be disturbed by the appellate court, though
appellate court is at liberty to take a different view.
Looking to these facts and circumstances, I am
constrained to answer the point under consideration in
the negative. Hence, the appeal being of devoid of any
merits does not survive for consideration. Accordingly, I
proceed to pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
SS
