Waheedulla Khan S/O Mehaboob Khan vs The State Of Karnataka
2023 Latest Caselaw 4220 Kant

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                                                           NC: 2023:KHC-K:5227
                                                           CRL.A No. 200120 of 2015




                            IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

                                  DATED THIS THE 11TH DAY OF JULY, 2023

                                                  BEFORE
                             THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                CRIMINAL APPEAL NO. 200120 OF 2015 (374-)
                       BETWEEN:

                       1.    WAHEEDULLA KHAN S/O MEHABOOB KHAN
                             AGE:55 YEARS, OCC:FDA IN TALUK,PANCHAYAT OFFICE,
                             SINDHANUR, TQ:SINDHANUR DIST:RAICHUR

                                                                            ...APPELLANT
                       (BY SRI. SHIVANAND V      PATTANASHETTI    &   SRI    ANILKUMAR
                       NAVADAGI, ADVOCATES)
                       AND:

                       1.    THE STATE OF KARNATAKA
                             R/BY SPECIAL PP HIGH COURT OF KARNATAKA
                             KALABURAGI, (THROUGH PSI OF LOKAYUKTA P.S
                             RAICHUR)

                                                                         ...RESPONDENT
                       (BY SRI. SUBHASH MALLAPUR,ADVOCATE)
                             THIS CRL.A. FILED U/S. 374(2) OF CR.P.C PRAYING TO ADMIT
                       THIS APPEAL, CALL FOR THE RECORDS FROM THE COURT BELOW
                       AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
Digitally signed by
LUCYGRACE              SENTENCE DATED: 17.11.2015 PASSED BY THE II-ADDL. DIST &
Location: HIGH COURT
OF KARNATAKA           SESSIONS JUDGE, RAICHUR, IN SPECIAL CASE NO.05/2011 AND
                       ACQUIT THE APPELLANT/ACCUSED IN TEH INTEREST OF JUSTICE
                       AND EQUITY.WHEREIN THE ACCUSED/ APPELLANT SENTENCED TO
                       UNDERGO R.I. FOR A PERIOD OF TWO YEARS AND ALSO TO PAY
                       FINE OF RS.15,000/- AND IN DEFAULT TO PAY THE FINE TO
                       UNDERGO R.I. FOR A FURTHER PERIOD OF THREE MONTHS.ACTING
                       UNDER SECTION 13(1)(d) OF PREVENTION OF CORRUPTION ACT
                       1988, THE ACCUSED IS HEREBY SENTENCED TO UNDERGO R.I. FOR
                       A PERIOD OF TWO YEARS AND ALSO TO PAY FINE OF RS.15,000/-
                       AND IN DEFAULT TO PAY THE FINE TO UNDERGO R.I. FOR A
                       FURTHER PERIOD OF THREE MONTHS.BOTH THE SENTENCES RUN
                       CONCURRENTLY.

                            THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                       THE COURT DELIVERED THE FOLLOWING:
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                                          NC: 2023:KHC-K:5227
                                          CRL.A No. 200120 of 2015




                                JUDGMENT

This appeal under Section 374(2) of Cr.PC is filed challenging the impugned judgment and order dated 17.11.2015 passed by the learned II Addl. District and Sessions Judge, Raichur in Special Case No.05/2011, by which, the accused has been convicted for the offences punishable under Sections 7 and 13(a)(d) read with Section 13(1)(2) of the Prevention of Corruption Act, 1988, and he has been sentenced to undergo RI for a period of two years, and pay a fine of Rs.15,000/-, and in default of payment of fine to undergo RI for further period of three months for the offence punishable under Section 7 of the Act, and further to undergo RI for a period of two years and to pay a fine of Rs.15,000/-, and in default of payment of fine further to undergo RI for further period of five months for the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act,1988.

2. The case of the prosecution is that, the complainant was the successful bidder, entrusted with contract, and arrears of Rs.1,19,745/- was due to him towards work carried out by him. The accused, who was working as Chief Accountant in the Taluk Panchayat, demanded gratification of Rs.15,000/- for clearing the bill, and after negotiation, the same was reduced to Rs.10,000/-, and the accused asked the complainant to deposit the gratification amount into the bank account No.62007299818. The complainant who was not desirous of paying the gratification amount, approached the Lokayuktha. The Lokayuktha, in turn, sent a constable to verify the

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genuineness of the account, and upon enquiry from the State Bank of Hyderabad, the constable was informed that, the account belongs to one Jaheeda Begum. Thereafter, the complainant once again telephoned to the mobile phone of the accused, and the accused told the complainant to deposit the said amount to the account number already furnished, and the said conversation was recorded.

3. The entrustment panchanama was prepared, and a trap was laid. In the said trap, the accused was found receiving the voucher from the complainant for having deposited a sum of Rs.10,000/- into the account of Jaheeda Begum Ahmed Sharif.

4. The Lokayukta after conducting the investigation laid the charge sheet for the aforesaid offence.

5. The learned Sessions Judge after framing charges read over the same and explained to the same to the accused, to which, he denied and claimed to be tried.

6. The prosecution to prove its case examined PWs.1 to 11 and exhibited the documents as Exs.P1 to 43 and marked the material objects at Exs.D1 to D5.

7. After completion of the evidence of prosecution, the incriminating circumstances found in the evidence of prosecution witnesses were put to the accused as contemplated under Section 313 of Cr.PC, to which, the accused denied. The accused marked the documents at Exs.D1 to D5.

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8. The learned Sessions Judge, after appreciating the evidence on record, held that, the prosecution has established the guilt of the accused beyond all reasonable doubt, and convicted the accused for the aforesaid offences.

9. The learned counsel for the appellant - accused submits that, the prosecution having failed to prove the demand of gratification and acceptance of the same, the impugned judgment passed by the learned Sessions Judge is not sustainable in law.

10. The learned counsel for the respondent - Lokayukta submits that, the recorded voice of conversation between the accused and the complainant, and voucher at Ex.P3 coupled with the evidence of prosecution witnesses clearly establish that, there was a demand of gratification and acceptance of the same by the accused, and the learned Sessions Judge, after appreciating the same, has rightly passed the impugned judgment, and the same does not warrant any interference.

11. Considered the submissions of the learned counsel for the parties and perused the trial court records.

12. PW1, the complainant, in his examination-in-chief, has categorically stated that, the accused demanded a sum of Rs.10,000/- towards gratification for clearing the bill, and in pursuance of the said demand, the complainant deposited a sum of Rs.10,000/- into the account of Jaheeda Begum Ahmad

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Sharif, and nothing was elicited in his cross-examination to disbelieve his statement.

13. PW2, who is the shadow witness to the trap panchanama, in his examination-in-chief, stated that, the complainant informed him that, the accused had made a demand of gratification, and in pursuance of the said gratification amount, he has seen the accused receiving the voucher at Ex.P3 from the complainant. However, PW2 has not stated that, he heard the accused demanding gratification from the complainant at the time of trap.

14. PW3 is the cashier of the Bank, in which, the gratification amount is said to have been deposited, and he has admitted that, the sum of Rs.10,000/- was deposited into the account of Jaheeda Begum Ahmad Sharif, and he acknowledged the receipt of the said amount from the complainant at Ex.P3.

15. PW4, who is the co-pancha of the trap, did not support the case of the prosecution and was treated as hostile.

16. PW5 is the Manager of Taluk Panchayat, Sindhanur. In his examination-in-chief, he identified/recognized the voice of the accused in the conversation recorded between the accused and the complainant on the respective mobile phones. However, he categorically admitted that, he is not aware as what was the conversation that took place between the accused and the complainant in the recorded voice conversation.

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17. PW6, who is the Accounts Officer in the Taluk Panchayat, Sindhanur, did not support the case of the prosecution, and was treated as hostile.

18. PW7, who is the Head of Account in the State Bank of Hyderabad, Gurumitkal, has stated that, the amount of Rs.10,000/- was credited into the account of Jaheeda Begum w/o Ahmed Sharif.

19. PW8, who is the Executive Officer of Taluk Panchayat, Sindhanur, furnished the service particulars of the accused.

20. PW9 is the Junior Engineer in the office of PWD and visited the scene of occurrence and prepared the sketch.

21. PW10 is the competent Authority, who passed an order granting sanction to prosecute the accused.

22. PW11 is the Investigating Officer, who conducted the investigation, laid the charge sheet, and supported the case of the prosecution.

23. On appreciating the evidence on record, there is no material to establish that, the accused demanded the gratification amount of Rs.10,000/- except the self-serving statement of the accused. PW4, who has identified/recognized the voice of the accused in the recorded conversation, has categorically stated that, he is not aware as to what was the conversation between the accused and the complainant in the

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recorded voice of conversation. The transcription of voice conversation also does not indicate that, the accused had demanded the gratification amount of Rs.10,000/-. Except the conversation that, the money had to be deposited to the account of Jaheeda Begum, however, the same has no evidentiary value, since it is not verified by the certificate as mandated under Section 65B of the Evidence Act.

24. The amount, which is stated to have been deposited by the complainant, has been credited to the account of Jaheeda Begum wife of Ahmed Sharif, and the prosecution has not established as to the relationship between the accused and Jaheeda Begum wife of Ahmad Sharif.

25. Except the statement of the complainant, none of the other prosecution witnesses have spoken about the demand of gratification made by the accused and the recorded voice as well as the bank voucher at Ex. P3, which also does not establish that the demand of gratification. Hence, a doubt arises as to whether there was demand and acceptance of gratification and benefit of doubt has to be given to the accused.

26. The learned Sessions Judge, without appreciating the crucial aspect, has passed the impugned judgment, and in the absence of any demand and acceptance of gratification, has passed the impugned judgment and order, and the same is not sustainable in law. Accordingly, I pass the following:

NC: 2023:KHC-K:5227 CRL.A No. 200120 of 2015

ORDER

i) Criminal appeal is allowed.

ii) The impugned judgment of conviction and order of conviction dated 17.11.2015 passed in Special Case No.05/2011 by the learned II Addl. District and Sessions Judge, Raichur, is hereby set aside.

iii) The bail bond, if any, stands discharged.

iv) The fine amount, if any, to be released in favour of the accused.

Sd/-

JUDGE

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