Karnataka High Court
Sri Thippeswamy B M vs State By on 13 January, 2023
Bench: M.Nagaprasanna
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WP No. 15644 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 15644 OF 2022 (GM-RES)
BETWEEN:
1. SRI. THIPPESWAMY B.M.
S/O MALAPPA B T,
AGED ABOUT 40 YEARS,
POLICE INSPECTOR
B.M.T.F. POLICE STATION
R/AT # 09, 1ST CROSS
3RD MAIN, KALYAN NAGAR
NEAR ESHWARA TEMPLE
BENGALURU - 560 072.
...PETITIONER
(BY SRI. SANDESH J CHOUTA, SENIOR ADVOCATE A/W
SRI. SUNIL KUMAR S., ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K 1. STATE BY KARNATAKA LOKAYUKTA
Location: HIGH
COURT OF AMBEDKAR ROAD,
KARNATAKA M.S.BUILDING
BENGALURU - 560 001
(REPRESENTED BY SPP
LOKAYUKTHA))
2. S. SRINIVASA
S/O LATE T. NARAYANA
AGED ABOUT 66 YEARS,
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WP No. 15644 of 2022
R/AT #1160, 21ST CROSS,
3RD SECTOR, HSR LAYOUT,
BENGALURU - 560 102.
...RESPONDENTS
(BY SRI. B.B.PATIL, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
FIR AND COMPLAINT IN CRIME NO.48/2021 REGISTERED BY
THE RESPONDENT ANTI CORRUPTION BUREAU DTD.27.1.2021
FOR OFFENCE p/u/s 7(a) OF THE PREVENTION OF
CORRUPTION ACT 1988 WHICH IS NOW PENDING BEFORE THE
HONBLE XXIII ADDL CITY CIVIL AND SESSIONS JUDGE
BENGALURU (CCH-24) VIDE ANENXURE-A.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner seeks the following prayer:
a) Quash the FIR and Complaint dated in Crime
No.48/2021 registered by the Respondent - Anti
Corruption bureau dtd 27/1/2021 for offences
p/u/s 7(a) of the prevention of corruption act-
1988. Which is now pending before the Hon'ble
XXIII Addl. City Civil and Sessions Judge
Bengaluru (CCH-24) vide Annexure-A.
b) Grant such other order or direction as this
Hon'ble Court deems fit in the facts and
WP No. 15644 of 2022
circumstances of the case in the interest of
justice and equity.
2. Heard the learned Senior counsel, Sri. Sandesh J.
Chouta, appearing for the petitioner and Sri. B.B. Patil, learned
counsel appearing for the respondents.
3. Learned Senior counsel taking this Court through
the documents appended to the petition would seek to
demonstrate that there was no demand, no acceptance, no
trap, no work pending for the complainant, who have registered
the said complaint and therefore, the very registration of crime
invoking the provisions of the Prevention of Corruption Act,
1988, was erroneous. He would seek to place reliance upon the
judgments rendered by this Court and that of the Co-ordinate
Bench of this Court in the case of MANJUNATH V. VS. STATE OF
KARNATAKA in W.P.No.10027/2022 dated 16.11.2022 and N.
THEJAS KUMAR VS. STATE OF KARNATAKA in
W.P.No.915/2022 dated 21.03.2022.
4. This Court in the case of MANJUNATH.V (supra) has
held as follows
WP No. 15644 of 2022
"8. The afore-narrated facts though not in dispute
need little elaboration. It is not in dispute that the
petitioner was functioning as in-charge Sub-Registrar at
Hosadurga, when the complainant presented the
mortgage deed for registration. It is also not in dispute
that the complainant availed loan by mortgaging the
property to the tune of Rs.18,00,000/-. The Chief
Executive Officer of the Society communicates to the
petitioner seeking exemption of his personal appearance
for registration of the mortgage deed and sends all
necessary documents through his communication dated
19-02-2022. The said document appended to the petition
reads as follows:
"«µÀAiÀÄ: ¹A¥À¯ï ªÀiÁnðUÉÃeï ªÀiÁrPÉÆqÀĪÀ §UÉÎ.
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§AzÀ ¥ÀlÖAvÉ ²æêÀÄw.UÁAiÀÄwæ¥Àæ¸Ázï r.f.
PÉÆÃA r.ºÉZï.UÀÄgÀÄ¥Àæ¸Ázï, ªÁå¥ÁjUÀ¼ÀÄ, ²æÃgÁA¥ÀÄgÀ UÁæªÀÄ, ²æÃgÁA¥ÀÄgÀ
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gÀÆ.18,00,000/- (ºÀ¢£ÉAlÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) ¸Á®PÉÌ ¸À°è¹zÀ CfðAiÀÄ
ªÉÄÃgÉUÉ ¸ÀzÀj ¸ÀAWÀªÀÅ gÀÆ.18,00,000/- (ºÀ¢£ÉAlÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ)
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SÁvÉ C¸É¸ïªÉÄAmï/ºË¸ï°¸ïÖ £ÀA:1662. 2) F-¸ÀéwÛ£À ¸ÀASÉå
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WP No. 15644 of 2022
ºÉƸÀzÀÄUÀð - 577 527."
In terms of the communication, when the documents
were presented by the complainant before the petitioner
on 24.02.2022, the petitioner registers the same and on
the very day i.e., 24-02-2022 releases the document in
favour of the complainant. Therefore, the registration in
terms of the communication dated 19-02-2022
takes place on 24-02-2022 and the document was
delivered to the complainant on 24-02-2022 itself,
without any loss of time.
9. After about a fortnight of receipt of the
registered mortgage deed, the complainant approaches
the ACB alleging that the petitioner had demanded
Rs.5,000/- to register the document i.e., the mortgage
deed. The complainant alleges that he was not willing to
pay any amount and he has recorded the conversation in
his mobile and seeks registration of the crime. The ACB
without even verifying the dates on which the allegations
are made, immediately registers a crime in Crime No.3 of
2022 for offences punishable under Section 7(a) of the
Act. Section 7 of the Act reads as follows:
"7. OFFENCE RELATING TO PUBLIC SERVANT
BEING BRIBED.--Any public servant who,--
(a) obtains or accepts or attempts to obtain
from any person, an undue advantage,
with the intention to perform or cause
performance of public duty improperly or
dishonestly or to forbear or cause
forbearance to perform such duty either
by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an
undue advantage from any person as a reward
for the improper or dishonest performance of a
public duty or for forbearing to perform such
duty either by himself or another public
servant; or
(c) performs or induces another public servant to
perform improperly or dishonestly a public duty
or to forbear performance of such duty in
anticipation of or in consequence of accepting
an undue advantage from any person,
WP No. 15644 of 2022
shall be punishable with imprisonment for a term
which shall not be less than three years but which
may extend to seven years and shall also be liable to
fine.
Explanation 1.--For the purpose of this section,
the obtaining, accepting, or the attempting to obtain
an undue advantage shall itself constitute an offence
even if the performance of a public duty by public
servant, is not or has not been improper.
Illustration.--A public servant, 'S' asks a
person, 'P' to give him an amount of five thousand
rupees to process his routine ration card application
on time. 'S' is guilty of an offence under this section.
Explanation 2.--For the purpose of this
section,--
(i) the expressions "obtains" or "accepts" or
"attempts to obtain" shall cover cases
where a person being a public servant,
obtains or "accepts" or attempts to
obtain, any undue advantage for himself
or for another person, by abusing his
position as a public servant or by using
his personal influence over another
public servant; or by any other corrupt
or illegal means;
(ii) it shall be immaterial whether such
person being a public servant obtains or
accepts, or attempts to obtain the
undue advantage directly or through a
third party."
(Emphasis supplied)
The allegation against the petitioner is under Section 7(a)
of the Act, which directs that a public servant obtaining or
accepting or attempting to obtain from any person an
undue advantage with an intention to perform or cause
performance of public duty improperly or dishonestly or to
forbear the performance of such duty either by himself or
by any public servant would be punishable with
imprisonment for a term of not less than 3 years but
which may extend upto 7 years and shall also be liable to
fine. Alleging the aforesaid offence, a trap is sought to be
laid against the petitioner on 02-03-2022. A pre-trap
WP No. 15644 of 2022
panchanama was prepared and Rs.4,000/- which became
the subject matter of pre-trap panchanama was given to
the hands of the complainant. The ACB then laid the trap
in the office of the petitioner. The petitioner was not in
the office on that day. The trap was thus rendered
unsuccessful and was postponed sine die. All this is
clearly gathered from pre-trap panchanama. After about
two months of registration of the document, another
entrustment panchanama was drawn on 20.04.2022 and
the trap was sought to be laid again in the office of the
petitioner and Rs.4,000/- is alleged to be found on the
table of the petitioner. The petitioner was not caught
red-handed while accepting bribe for the ACB to contend
that there was any demand or acceptance. The
panchanama drawn on 20-04-2022, would clearly indicate
that the petitioner was not caught red-handed accepting
the amount of Rs.4,000/-. Rs.4,000/- was found on the
table of the petitioner, which was kept by the
complainant. Therefore, the trap on the first instance
failed, and the trap on the second instance was a failure.
Based upon the aforesaid trap, the 1st respondent sought
to conduct investigation into the matter holding that the
petitioner was guilty of demand and acceptance of illegal
gratification. It is then the petitioner knocks the doors of
this Court.
10. The dates in the offence would clearly indicate
that there was no work pending in the office of the
petitioner for him to either demand money or accept
money as illegal gratification. On 19-02-2022, the
mortgage deed was sent for registration by the Chief
Executive Officer of the Society where the petitioner had
availed loan and the remaining documents were placed
before the petitioner on 24-02-2022. The petitioner
registers it on the same day and released the document
on the same day. Therefore, there can be no question of
any work pending with the petitioner beyond the office
hours of 24-02-2022. The complainant does not allege
that the petitioner took bribe to release the document on
24-02-2022, as the document was released immediately.
After fifteen days of the registration of the mortgage
deed, the complainant seeks to register the complaint on
02-03-2022, that the petitioner had demanded bribe
fifteen days ago. Based on the same, a trap was laid but
WP No. 15644 of 2022
the trap fails as the petitioner was not even available.
After about 2 months of registration of the document, a
second stint of trap is sought to be laid and Rs.4,000/- is
found on the table of the petitioner. The petitioner was
not caught accepting any illegal gratification. The
imaginary demand and acceptance is sought to be laid
against the petitioner and investigation is sought to be
conducted.
11. It is now germane to notice the judgments
rendered by the Apex Court wherein the Apex Court
clearly holds that if there is demand, there should be
acceptance. Neither demand alone nor acceptance alone
would not become an offence under Section 7 of the Act.
The Apex Court in the case of B.JAYARAJ v. STATE OF
A.P.1, has held as follows:
"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 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. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89]
and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 :
(2009) 2 SCC (Cri) 1]"
(Emphasis supplied)
The Apex Court therein was following the judgments
rendered a little earlier in time in the case of C.M.
SHARMA v. STATE OF A.P. reported in (2010) 15 SCC
1 and C.M. GIRISH BABU v. CBI reported in (2009) 3
SCC 779, wherein the Apex Court in those cases had
clearly held that mere recovery of currency notes from
the accused is not sufficient to constitute an offence
under Section 7 of the Act. All these judgments are again
followed by the Apex Court in the case of
(2014) 13 SCC 55
WP No. 15644 of 2022
N.VIJAYAKUMAR v. STATE OF T.N.2, wherein it is held
as follows:
"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 [C.M. Girish Babu v. CBI, (2009) 3 SCC
779: (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State
of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55:
(2014) 5 SCC (Cri) 543] 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 [B. Jayaraj v. State of A.P.,
(2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] 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 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. [C.M. Sharma v. State
(2021) 3 SCC 687
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WP No. 15644 of 2022
of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri)
89] and C.M. Girish Babu v. CBI [C.M. Girish
Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC
(Cri) 1] .
8. In the present case, the complainant
did not support the prosecution case insofar as
demand by the accused is concerned. The
prosecution has not examined any other
witness, present at the time when the money
was allegedly handed over to the accused by
the complainant, to prove that the same was
pursuant to any demand made by the accused.
When the complainant himself had disowned
what he had stated in the initial complaint
(Ext. P-11) before LW 9, and there is no other
evidence to prove that the accused had made
any demand, the evidence of PW 1 and the
contents of Ext. P-11 cannot be relied upon to
come to the conclusion that the above material
furnishes proof of the demand allegedly made
by the accused. We are, therefore, inclined to
hold that the learned trial court as well as the
High Court was not correct in holding the
demand alleged to be made by the accused as
proved. The only other material available is the
recovery of the tainted currency notes from the
possession of the accused. In fact such
possession is admitted by the accused himself.
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
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WP No. 15644 of 2022
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 abovesaid view taken by this Court fully
supports the case of the appellant. In view of the
contradictions noticed by us above in the
depositions of key witnesses examined on
behalf of the prosecution, we are of the view
that the demand for and acceptance of bribe
amount and cellphone by the appellant, is not
proved beyond reasonable doubt. Having regard
to such evidence on record the acquittal recorded by
the trial court is a "possible view" as such the
judgment [State of T.N. v. N. Vijayakumar, 2020 SCC
OnLine Mad 7098] of the High Court is fit to be set
aside. Before recording conviction under the
provisions of the Prevention of Corruption Act, the
courts have to take utmost care in scanning the
evidence. Once conviction is recorded under the
provisions of the Prevention of Corruption Act, it casts
a social stigma on the person in the society apart
from serious consequences on the service rendered.
At the same time it is also to be noted that whether
the view taken by the trial court is a possible view or
not, there cannot be any definite proposition and each
case has to be judged on its own merits, having
regard to evidence on record."
(Emphasis supplied)
Later, the Apex Court in the case of K.SHANTHAMMA v.
STATE OF TELANGANA3, has held as follows:
(2022) 4 SCC 574
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WP No. 15644 of 2022
"10. We have given careful consideration to
the submissions. We have perused the depositions of
the prosecution witnesses. The offence under Section
7 of the PC Act relating to public servants taking bribe
requires a demand of illegal gratification and the
acceptance thereof. The proof of demand of bribe
by a public servant and its acceptance by him
is sine qua non for establishing the offence
under Section 7 of the PC Act.
11. In P. Satyanarayana Murthy v. State of
A.P. [P. Satyanarayana Murthy v. State of A.P.,(2015)
10 SCC 152: (2016) 1 SCC (Cri) 11], this Court has
summarised the well-settled law on the subject in
para 23 which reads thus : (SCC p. 159)
"23. The proof of demand of illegal
gratification, thus, is the gravamen of the
offence under Sections 7 and 13(1)(d)(i) and
(ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail.
Mere acceptance of any amount allegedly by
way of illegal gratification or recovery thereof,
dehors the proof of demand, ipso facto, would
thus not be sufficient to bring home the charge
under these two sections of the Act. As a
corollary, failure of the prosecution to prove
the demand for illegal gratification would be
fatal and mere recovery of the amount from
the person accused of the offence under
Section 7 or 13 of the Act would not entail his
conviction thereunder."
(emphasis supplied)
12. The prosecution's case is that the
appellant had kept pending the return of
commercial tax filed by the said Society for the
year 1996-97. The appellant had issued a notice
dated 14-2-2000 to the said Society calling upon
the said Society to produce the record.
Accordingly, the necessary books were
produced by the said Society. The case made out
by PW 1 is that when he repeatedly visited the
office of the appellant in February 2020, the
- 13 -
WP No. 15644 of 2022
demand of Rs 3000 by way of illegal
gratification was made by the appellant for
passing the assessment order. However, PW 1,
in his cross-examination, accepted that the
notice dated 26-2-2000 issued by the appellant
was received by the said Society on 15-3-2000
in which it was mentioned that after verification
of the books of accounts of the said Society,
exemption from payment of commercial tax as
claimed by the said Society was allowed. PW 1
accepted that it was stated in the said notice
that there was no necessity for the said Society
to pay any commercial tax for Assessment Year
1996-97.
13. According to the case of PW 1, on 23-
3-2000, he visited the appellant's office to
request her to issue final assessment order.
According to his case, at that time, initially, the
appellant reiterated her demand of Rs 3000. But
she scaled it down to Rs 2000. Admittedly, on
15-3-2000, the said Society was served with a
notice informing the said Society that an
exemption has been granted from payment of
commercial tax to the said Society. Therefore,
the said Society was not liable to pay any tax for
the year 1996-97. The issue of the final
assessment order was only a procedural
formality. Therefore, the prosecution's case
about the demand of bribe made on 23-3-2000
by the appellant appears to be highly doubtful.
14. PW 1 described how the trap was laid. In
the pre-trap mediator report, it has been recorded
that LW 8, Shri R. Hari Kishan, was to accompany PW
1 -- complainant at the time of offering the bribe. PW
7 Shri P.V.S.S.P. Raju deposed that PW 8 Shri U.V.S.
Raju, the Deputy Superintendent of Police, ACB, had
instructed LW 8 to accompany PW 1 -- complainant
inside the chamber of the appellant. PW 8 has
accepted this fact by stating in the examination-in-
chief that LW 8 was asked to accompany PW 1 and
observe what transpires between the appellant and
PW 1. PW 8, in his evidence, accepted that only PW 1
entered the chamber of the appellant and LW 8
waited outside the chamber. Even PW 7 admitted in
- 14 -
WP No. 15644 of 2022
the cross-examination that when PW 1 entered the
appellant's chamber, LW 8 remained outside in the
corridor. Thus, LW 8 was supposed to be an
independent witness accompanying PW 1. In breach
of the directions issued to him by PW 8, he did not
accompany PW 1 inside the chamber of the appellant,
and he waited outside the chamber in the corridor.
The prosecution offered no explanation why LW 8 did
not accompany PW 1 inside the chamber of the
appellant at the time of the trap.
15. Therefore, PW 1 is the only witness to the
alleged demand and acceptance. According to PW 1,
firstly, the demand was made of Rs 3000 by the
appellant on 24-2-2000. Thereafter, continuously for
three days, she reiterated the demand when he
visited the appellant's office. Lastly, the appellant
made the demand on 29-2-2000 and 23-3-2000. On
this aspect, he was cross-examined in detail by the
learned Senior Counsel appearing for the appellant.
His version about the demand and acceptance is
relevant which reads thus:
"In the vicinity of office of AO the jeep,
in which we went there was stopped and I was
asked to go into the office of AO and the trap
party took vantage positions. Accordingly, I
went inside the office of AO. I wished AO. At
that time apart from AO some other person
was found in the office room of AO and he was
talking to the AO. AO offered me a chair. After
discussion with the AO the said other person
left the room of AO. I informed AO that I
brought the bribe amount as demanded by her
and also asked her to issue the final
assessment orders. Then I took the said
tainted currency notes from my shirt pocket
and I was about to give the same to the AO
and on which instead of taking the same
amount directly by her with her hands she took
out a diary from her table drawer, opened the
diary and asked me to keep the said amount in
the diary. Accordingly, I kept the amount in
the said diary. She closed the said diary and
again kept the same in her table drawer and
locked the drawer and kept the keys in her
- 15 -
WP No. 15644 of 2022
hand bag which was hanging to her seat. She
pressed the calling bell and a lady attender
came into the room of AO, then she instructed
the lady attender to call ACTO concerned to
her along with the society records concerned.
Accordingly, ACTO came to AO along
with record. After going through the ledger and
cash book, etc. AO signed on the last page of
the said ledger and cash book mentioning 26-
2-2000 below her signature in the said register
though she signed on 27-3-2000 in my
presence. AO directed her attender to affix
official rubber stamp below her signature in the
ledger and cash book and accordingly attender
affixed the same. AO also signed on the office
note of final assessment orders at that time.
Thereafter, I collected the general ledger and
cash book from the attender after affixing the
said rubber stamp thereon and came out of the
office of AO and relayed the pre-arranged
signal to the trap party."
(emphasis supplied)
16. Thus, PW 1 did not state that the appellant
reiterated her demand at the time of trap. His version
is that on his own, he told her that he had brought
the amount. What is material is the cross-
examination on this aspect. In the cross-examination,
PW 1 accepted that his version regarding the demand
made by the appellant on various dates was an
improvement. The relevant part of the cross-
examination of the appellant reads thus:
"I did not state to ACB Inspector in
Section 161 CrPC statement that on the
evening of 24-2-2000 I met the AO and that
she demanded the bribe. I did not mention in
Ext. P-3 complaint that continuously for 3 days
after 24-2-2000 I met the AO and the AO
reiterated her demand. I did not mention in
Ext. P-3 complaint that on 29-2-2000 I
approached the AO and the AO demanded
bribe of Rs 3000 and that unless I pay the said
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bribe amount she will not issue final
assessment orders. I did not state in my
Section 164 statement before the Magistrate
that 13-3-2000 to 16-3-2000 I was on leave
and from 1-3-2000 to 12-3-2000, I was
engaged in recovering the dues of the society.
It is not true to suggest that I did not meet the
AO continuously 3 days i.e. on 25-2-2000, 26-
2-2000 and 27-2-2000 and that 27-2-2000 is
Sunday. It is not true to suggest that I did not
meet the AO in the evening of 24-2-2000 and
that AO did not demand any money from me. I
did not state in my Section 161 CrPC
statement to Inspector of ACB that before I left
the office of DSP on the date of trap I made a
phone call enquiring about the availability of
AO and the AO was in the office and informed
me that she should be available in the office
from 6.00 to 7.00 p.m. on that day so also in
my Section 164 CrPC. I made such a phone call
from the office of the DSP, ACB. I do not
remember as to from which phone number I
made phone call on that day. I cannot describe
office telephone number of the AO. It is not
true to suggest that I did not make any such
phone call to AO and that she did not give any
such reply to me. I did not state to ACB
Inspector in my Section 161 CrPC statement or
to the Magistrate in my Section 164 CrPC
statement that I went inside the office of AO
and I wished AO and at that time apart from
AO some other person was found in the office
room of AO and that he was talking to the AO
and that the AO offered me a chair and that
after discussion with the AO the said person
left the room of AO and then I informed the AO
that I brought the bribe amount. I did not state
that said aspects to DSP during the post trap
proceedings also."
(emphasis supplied)
17. Thus, the version of PW 1 in his
examination-in-chief about the demand made by the
appellant from time to time is an improvement. As
stated earlier, LW 8 did not enter the appellant's
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WP No. 15644 of 2022
chamber at the time of trap. There is no other
evidence of the alleged demand. Thus, the evidence
of PW 1 about the demand for bribe by the appellant
is not at all reliable. Hence, we conclude that the
demand made by the appellant has not been
conclusively proved.
18. PW 2, Shri B.D.V. Ramakrishna had no
personal knowledge about the demand. However, he
accepted that on 15-3-2000, the said Society received
a communication informing that the said Society need
not pay any tax for the year 1996-97. PW 3 Shri L.
Madhusudhan was working as Godown Incharge with
the said Society. He stated that on 15-3-2000, when
he visited the appellant's office, ACTO served the
original notice dated 26-2-2000 in which it was
mentioned that the Society was not liable to pay any
tax. It is his version that when he met the appellant
on the same day, she enquired whether he had
brought the demanded amount of Rs 3000. However,
PW 3 did not state that the appellant demanded the
said amount for granting any favour to the said
society.
19. PW 4 Ahmed Moinuddin was ACTO at the
relevant time. He deposed that on 27-3-2000, the
appellant instructed him to prepare the final
assessment order, which was kept ready in the
morning. He stated that he was called at 6 p.m. to
the chamber of the appellant along with books of the
said Society. At that time, PW 1 was sitting there. He
stated that the appellant subscribed her signature on
a Register of the said Society and put the date as 26-
2-2000 below it. He was not a witness to the alleged
demand. However, in the cross-examination, he
admitted that the appellant had served a memo dated
21-3-2000 to him alleging that he was careless in
performing his duties."
(emphasis supplied)
Considering the entire spectrum of law concerning an
offence under Section 7 of the Act, the Apex Court holds
that demand and acceptance are sine qua non for
establishing the offence under Section 7 of the Act.
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WP No. 15644 of 2022
12. On a coalesce of the judgments rendered by
the Apex Court, as quoted hereinabove, what would
unmistakably emerge is that, demand and acceptance by
the public servant of illegal gratification is sine qua non
for establishing the offence under Section 7 of the Act.
The Apex Court has further held that mere demand
without acceptance or mere acceptance without demand
would not be enough circumstance to prove the allegation
against those accused under Section 7 of the Act. Though
they were cases which go to the Apex Court at the
appellate stage, the law that is laid down would clearly
become applicable to cases where the complaint would
not even divulge any semblance of demand or
acceptance.
13. If the facts obtaining in the case at hand are
considered on the bedrock of the principles laid down by
the Apex Court, what would unmistakably emerge is that,
there is neither demand nor acceptance in the case at
hand. The demand should be for any work to be
performed and acceptance should be towards the said
work. The documents produced along with the petition
are so unimpeachable that they would clearly
demonstrate that the work that came before the
petitioner on 24-02-2022 was performed and the
document was released on the same day itself. If the
complainant had complained that the petitioner had
demanded money for release of document that would
have been a circumstance altogether different. The
complaint is made after * 07 days of release of the
document when no work was pending with the petitioner,
the final trap is laid after two months of registration of the
document and the petitioner is not even caught accepting
any illegal gratification for him to have demanded so, two
months ago. Section 7 of the Act would clearly hint at a
pre-paid demand for performing a work and acceptance.
There is no post-paid concept under Section 7 of the Act,
that too, on a trap that is laid after two months after the
alleged demand. The first trap fails and the second trap
is a failure.
14. The contention of the learned counsel
representing the 1st respondent-ACB/Lokayukta is neither
here nor there as he is unable to wriggle out of the fact
* Corrected vide chamber order dated 21.11.2022.
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WP No. 15644 of 2022
that the work had already been done and the alleged
demand was projected after *07 days of the work and
trap was laid after two months of the work completion.
Reliance being placed on certain audio conversation
between the petitioner and the complainant cannot even
be pressed in his defence in view of unequivocal facts
narrated hereinabove. Therefore, if further proceedings
are permitted to continue against the petitioner, it would
become an abuse of the process of law, result in
miscarriage of justice, degenerate into harassment of
public servant and would run foul of the judgment
rendered by the Apex Court in the case of STATE OF
HARYANA v. BHAJAN LAL4, wherein the Apex Court
holds as follows:-
"102. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226
or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we
give the following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
1992 Supp (1) SCC 335
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WP No. 15644 of 2022
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
(Emphasis supplied)
The Apex Court has laid down postulates of circumstances
in which an FIR can be quashed. Two postulates are
applicable to the case at hand. One being the first
postulate, that even if the complaint is taken on its face
value, prima facie would not make out a case against the
petitioner. The other being inherent improbability
shrouded with the complaint. Therefore, following the
judgment of the Apex Court in the case of BHAJAN LAL
(supra) and the unequivocal fact that there is neither
demand nor acceptance as laid down by the Apex Court in
the aforesaid judgment, I deem it appropriate to
obliterate the crime registered against the petitioner in
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WP No. 15644 of 2022
Crime No.3 of 2022 for offences punishable under Section
7(a) of the Act.
5. In the case of N.THEJAS KUMAR (supra),
the Co-ordinate Bench of this Court has held as follows:
25. (ii) AS REGARDS THE DEMAND AND
ACCEPTANCE:
The learned counsel has also contended that the
complainant has not at all stated anything about the date
on which the petitioner demanded the bribe and there is
no evidence or material to show that the petitioner
received Rs.10.50 lakhs from the complainant in August
2021. It is vague allegation made against him without
date and time and without any audio recordings.
26. On perusal of the document produced by the
respondents and on the averment made by respondent
No.2, in his complaint, he has not at all stated any dates
in August 2021 to show that he had approached the
accused, the accused had demanded money and received
the same from respondent No.2. Though the complainant
has stated that accused No.2 Girish came and received
money once Rs.5.00 lakhs and Rs.4.00 lakhs near KPSC
office, but he has not stated on which date he has paid
the money and also no details forthcoming in the
complaint to show that the said amount was paid to the
accused no.2 at the instance of this petitioner. That
apart, the police also raided house of the petitioner, they
searched the house and nothing has been found and
seized any cash from this petitioner's house, except
some documents; Adhaar card etc. That is not enough to
show that he has previously demanded and accepted
money from Respondent No.2.
27. Now coming to the date of trap, and as per
the instructions given by the investigation officer
instructed the complainant as well as shadow witness that
the bribe amount shall be paid to accused No.1 only on
demand by accused then only to pay the money to
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accused No.1 and also sent a digital voice recorder.
Accordingly, respondent No.2 defacto complainant along
with shadow witness was asked to go near the chamber of
accused no.1. The shadow witness stayed out side the
chamber and the respondent No.2, the complainant alone
goes inside the chamber of accused No.1, by closing the
door and again comes out and closed the door and then
he went to the chamber of accused No.3 Dasegowda, and
handed over the tainted cash of Rs.2.00 lakhs to the
accused No.3. accused No.3 has accepted the same and
kept in his lunch bag. Immediately, the investigation
officer along with the staff trapped accused No.3 and
seized the same and hand wash of accused No.3 turned
into pink which suggests the receipt of money by accused
No.3.
28. Now, the question is whether accused NO.3
accepted money on the instruction given by accused No.1
or not.
29. In this regard, statement of the defacto
complainant and the shadow panch witness as well as the
trap panchanama reveals that the shadow witness stood
outside the chamber of accused No.1 and the defacto
complainant goes alone into the chamber of accused
No.1. The de-facto complainant closes the door by
entering into the chamber and immediately he comes out
and then goes to the accused No.3 and hands over the
cash. Absolutely, there is no link or material in the
panchanama or in the statement of the defacto
complainant or in the statements of shadow witness to
show that the present petitioner accused No.1, demanded
the bribe or asked the defacto complainant to hand over
the cash to the accused No.3 or he telephoned to accused
No.3 or called accused No.3 to his chamber and instructed
him to receive money from the de-facto complainant.
Absolutely, there is no mention in the trap panchanama.
30. It is well settled that when there is no
demand and acceptance which is sine quo non for
framing of charge under Section 7(A) of P.C. Act
and the complaint and trap panchanama itself has
no legs to stand to say there is cognizable offence
made out against the petitioner or any material
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placed on record as of now to say that he has
demanded any bribe and accepted the bribe from
the defacto complainant as on the day of trap.
31. If at all accused No.3 received any bribe
amount, he has to give explanation and rebut the
presumption available to the prosecution under Section
20 of P.C. Act. That apart, the investigation officer had
sent digital voice recorder through the defacto
complainant to confirm the demand by accused No.1 and
directing the complainant to hand over bribe to any other
person as per the direction of accused No.1, but the fact
remains that there is no conversation found in digital
voice recorder. Such being the case, the question of
presuming or assuming that the petitioner demanded
bribe does not arise. When there is no material evidence
for demand, the question of acceptance of bribe does not
arise. Even otherwise mere acceptance, without demand
is not an offence under Section 7 of PC Act
32. In view of the judgment stated supra,
when there is no demand and acceptance, the
question of conducting investigation against the
petitioner by the investigation officer, which is
futile exercise which is nothing but an abuse of
process of law.
33. As I have already held above, when
there is no work pending with the petitioner when
there is no audio recording, material or any
material on date to show that he has demanded or
accepted any money either prior to September 2021
or as on the day of trap and in view of the transfer
of petitioner from the post with immediate effect
form 15.09.2201 and ordered to hand over files as
on 17.09.2021, the question of pending of work,
demand and acceptance does not arises at all."
(emphasis supplied)
6. Though the learned counsel appearing for the
respondents would seek to put up vehement opposition to the
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submissions made by the learned Senior counsel, is not in a
position to dispute the position of law as is laid down by this
Court and that of the Co-ordinate Bench of this Court.
7. In the light of the issue standing covered by the
aforesaid orders passed by this Court and that of Co-ordinate
Bench of this Court on all their fours, I deem it appropriate to
terminate the proceedings against the petitioner following the
said orders.
8. For the foregoing reasons, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) First Information Report registered by the 1st
respondent in Crime No.48 of 2021 dated
27-01-2021 and all further proceedings thereto
stands quashed.
Sd/-
JUDGE
SJK
