N P Nagesha vs State Of Karnataka
2023 Latest Caselaw 2741 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF JUNE, 2023

                         BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

           CRIMINAL APPEAL NO.578 OF 2011

BETWEEN:

N P NAGESHA
S/O LATE B PUTTEGOWDA
VILLAGE ACCOUNTANT,
MOSANABAYANAHALLI
VARUNA HOBLI,
MYSORE TALUK,
MYSORE DISTRICT                            ... APPELLANT

(BY SMT NALINA MAYEGOWDA, SENIOR ADVOCATE
 FOR SRI H.M. MANJUNATHA, ADVOCATE)

AND:

STATE OF KARNATAKA
BY LOKAYUKTHA POLICE
MYSORE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE                              ... RESPONDENT

(BY SRI VENKATESH S. ARBATTI, SPL.P.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DT:19.05.2011
PASSED BY THE PRL.DIST., AND S.J., MYSORE IN
SPL.C.NO.2/07 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d)
READ WITH SECTION 13(2) OF PREVENTION OF CORRUPTION
ACT AND ETC.
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      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 29.5.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                    JUDGMENT

This appeal is filed by the appellant under Section

374 (2) of Cr.P.C for setting aside the judgment of

conviction and sentence dated 19.05.2011 passed by the

Principal District and Sessions Judge, Mysore (herein after

referred to as "Trial Court") in Spl.C.No.02/2007 for having

found convicted the appellant and sentenced to undergo

imprisonment for one year with fine of Rs.5000/-(Rupees

Five Thousand only) and in default to undergo simple

imprisonment for four months for the offence punishable

under Section 7 of Prevention of Corruption Act (herein

after referred to as 'PC Act') and the imprisonment of three

years with fine of Rs.20,000/- (Rupees Twenty Thousand

only), in default of payment of fine to undergo one year

simple imprisonment for the offence punishable under

Section 13(1)(d) read with Section 13(2) of PC Act.

2. Heard the arguments of learned senior counsel

for the appellant and learned special counsel Venkatesh

Arbatti. The rank of the parties before the trial court is

retained for convenience.

3. The case of prosecution is that PW1 Lokesh, son

of Sambulingappa, filed the complaint to the Lokayuktha

police, Mysuru, on 28.11.2005, alleging that his wife

Rekha got a land in Sy.No.29 measuring 1.30 guntas at

Kiralu village from her father by way of gift deed on

20.08.2005. The complainant wanted to change the

khatha in her name and the accused himself approached

the wife of the complainant and informed that he has

received "J" form from the Sub Registrar office and asked

him to come and get the khatha change in her name. Due

to some work he was unable to go to the office of the

accused. The accused being Village Accountant of Kiralu

village the complainant approached the accused on

20.11.2005 and requested for change of khatha, for that

the accused said to have taken Rs.1,000/- as bribe. Since

he is unemployed and not willing to pay the bribe, he

lodged the complaint. After registering the FIR in Crime

No.12/2005, the Lokayuktha police called two panch

witnesses and prepared the endorsement under

panchanama and informed that they smeared

phenolphthalein powder on the currency notes and they

informed that if the accused touches the tainted currency

notes and sodium carbonate solution would turn into pink.

After preparing the trap, the complainant and PW3 were

sent to the office of the accused. Investigating officer also

went along with the complainant. They stopped the vehicle

and on enquiry, the accused was not in the office and the

complainant came to know that the accused is in janata

colony. Then the complainant and PW3 went to the said

place. The accused asked about the money and the

complainant paid the money, the accused received and

later, kept in his shirt pocket. Immediately the police

apprehended the accused. He was taken to the village

panchayat office where the seizure panchanama was

conducted and hands of the accused said to be washed in

the sodium carbonate solution which turned into pink and

the same was seized.

4. The explanation was called from the accused and

he has stated that he requested loan from the complainant

and it was issued by him. The explanation was not

satisfied as per the information given by the PW1. Hence

case was registered. Subsequently, accused was produced

before court and was released on bail. Investigation

officer completed the investigation and filed charge sheet

for the offences punishable under Sections 7 and 13(1)(d)

read with Section 13(2) of P.C. Act. The accused was

secured by the trial Court and plea was recorded. The

accused claimed to be pleaded not guilty.

5. The prosecution in all examined four witnesses as

per P.Ws.1 to 4 and got marked 12 documents as per

Exs.P.1 to 12(a) and got marked the material objects as

per M.Os.1 to 10. The statement of the accused under

Section 313 of Cr.P.C. was recorded and but no witnesses

were examined on behalf of defence. However, Exs.D.1 to

D.7 has been marked on the side of defence. After

hearing the arguments, the trial Court found the accused

guilty and convicted and sentenced him to undergo

imprisonment as stated supra. Hence, challenging the said

judgment of conviction and sentence, the appellant-

accused is before this Court.

6. The learned Senior counsel for the appellant-

accused has contended that the judgment of the trial Court

convicting and sentencing the appellant-accused, is

erroneous and not in accordance with law. There is

contradiction in respect of the evidence of prosecution

witnesses. There is no entrustment of work pending with

the accused as on 28.11.2005. He has already prepared

the report and signed it on 26.11.2005 itself, but, he was

unable to send the same to the Revenue Inspector.

Therefore, as on the date of trap, there was no work

pending with the appellant-accused and the same was not

considered by the trial Court.

7. The learned counsel further contended that the

sanctioning authority has not applied its mind even though

the work was not pending with accused and work was

completed. Even in the evidence, it was stated that the

the work was already completed inspite of which the

sanction order was accorded by P.W.2, which is not

correct. It is stated in the complaint that the hand wash of

the appellant-accused turned pink, but it was not turned

pink as per the evidence of P.W.3. Therefore, it cannot be

said that the appellant-accused has accepted the tainted

money. There is contradiction and inconsistency in the

evidence of P.Ws.1 and 3 in respect of the acceptance of

cash, where P.W.1 has stated that the accused received

money and kept in his shirt whereas P.W.3 stated that the

accused received cash, counted it and kept it in the shirt

pocket. The trial Court did not consider this aspect.

8. The learned counsel for the appellant has also

contended that the accused at the first point of time has

given an explanation that the amount was received by way

of loan. Therefore, it cannot be said that the accused has

accepted or demanded any bribe. Previously, the accused

said to have have been done some other work and issued

khatha of the property and the complainant requested

ration card for second time and it was denied by the

accused. Therefore, a false complaint has been filed

against him. Therefore, the judgment of conviction and

sentence and the reasoning given by the trial Court is not

acceptable. Exs.D.1 and D.3 reveal that work completed

and kept ready by the accused. He has issued 30 days

notice and he has prepared report on completion of 30

days. Absolutely, there was no pendency of work with the

accused. Therefore, the question of demanding any

money does not arise. The learned Senior counsel also

contended that at the time of trap, the accused was in the

midst of general public at Janatha Colony and none of the

independent witnesses have been examined by the

investigation officer in this regard. Therefore, non

examination of independent witnesses is fatal to the

prosecution case.

9. The learned Senior Counsel further contended

that at the time of seizure panchanama, video has been

taken by the police, apart from photographs and the same

was not marked. As per the evidence of P.Ws.1, 3 and 4,

the voice recorder has been sent through the complainant

and it has been marked as M.O.10, but the cassette was

not marked and the voice recorder was not sent to FSL for

comparison. The learned Senior Counsel further

contended that the appellant-accused is not the khatha

issuing authority, but it is the Revenue Inspector who

issues the khatha. There is lot of inconsistency in the

evidence as well as the documents and also the material

objects. Therefore, prayed for allowing the appeal.

10. Per contra, learned Special Counsel appearing

for the respondent Lokayuktha has supported the

impugned judgment of conviction and sentence passed by

the trial Court. He has contended that as on the date of

trap, the work was pending with the appellant-accused.

Though the report has been prepared by the appellant on

26.11.2005, he had not sent it. On the third day, the trap

was conducted in the evening at 5.00 p.m. Therefore, it

cannot be said that the work was not pending with the

appellant.

11. The learned Special Counsel for Lokayuktha also

contended that the appellant-accused is not the khatha

issuing authority and he is the only recommending

authority, but the Revenue Inspector used to issue the

khatha. Therefore, as on the date of trap, the work was

pending with the appellant-accused.

12. The learned Special Counsel for Lokayuktha also

contended that though the accused taken the contention

that the amount was received by him as loan and another

contention that he kept the cash in pocket, there is more

contradiction in the contention of the appellant-accused

and there is no plausible explanation given by the accused.

The hand wash of the accused was turned into pink and

there is some discrepancy in the evidence of P.W.3.

Normally, the solution used to be turned into pink colour

but not the hand. Therefore, on that ground, the impugned

judgment cannot be set aside.

13. The learned Special Counsel for Lokayuktha

further contended that the police also secured independent

panch witnesses who are the government officials.

Therefore, question of taking independent witness to the

spot does not arise. It is also contended that the

sanctioning authority-P.W.2 has applied his mind and has

considered all the aspects and thereafter, he has accorded

sanction and it is in accordance with law. The learned

Special counsel further contended that the work was

pending with the appellant-accused and the same was

proved by way of examination of P.W.2, in accordance with

law. The learned Special counsel also contended that the

cassette though was seized by the investigation officer and

marked as M.O.10, but it is wrongly stated as voice

recorder. However, it was not sent to FSL because when it

played, it was not audible. Therefore, the investigation

officer did not chose to send the voice recorder to the FSL.

Therefore, the evidence of P.Ws.1 to 4 corroborates each

other. Therefore, the prosecution has proved all the

aspects beyond reasonable doubt. Hence, prayed for

dismissing the appeal.

14. Having heard the learned counsel for the

parties, perused the records.

15. The points that arise for my consideration are :

1. Whether the prosecution proves beyond reasonable doubt that the appellant-accused, being the village accountant, demanded Rs.1,000/- for sending report to the Revenue Inspector for issuing khatha in favour of the wife of P.W.1, thereby he has committed the offence punishable under Section 7 of the PC Act ?

2. Whether prosecution proves beyond reasonable doubt that the appellant-accused misused the official position and accepted gratification for recommending to issue khatha and thereby he has committed misconduct punishable under Section 13(1)(d) and read with Section 13(2) of PC Act ?

3. Whether the judgment of conviction and sentence passed by the trial Court calls for interference ?

16. Prior to the appreciation of evidence, it is worth

mention the evidence of prosecution witnesses. The

prosecution, in all, examined four witnesses.

17. P.W.1 is the de-facto complainant and he has

deposed, in his evidence, that the appellant-accused was

the village accountant of Masanabayanahalli village.

P.W.1-complainant wanted to get the khatha transferred in

the name of his wife as his father-in-law executed gift

deed in favour of his wife and registration Form No.'J' was

received by the accused and for the purpose of

recommending for issuing khatha, he has demanded

Rs.1,000/- as bribe. Since the P.W.1-complainant was not

willing to pay the same, he lodged the complaint. P.W.1

further deposed that the investigation officer after

registering FIR on 28.11.2005, called two panch witneses

to the police station and prepared demo of panchanama as

per Ex.P.2 and instructed the complainant to hand over the

cash of Rs.1,000/- which was smeared with

phenolphthalein powder. After setting up a trap, P.W.1-

complainant himself along with shadow witness-P.W.3-

police official, went near the village accountant office

where it was revealed that the appellant-accused was in

field at Janatha colony. Therefore, he went there along

with shadow witness-P.W.3 and accused asked as to

whether he has brought money. Accordingly, P.W.1

handed over Rs.1,000/- and the same was accepted and

kept in the pocket by the accused. Then the police

immediately trapped him and taken him to the village

accountant office by holding his hand and the cash was

seized from his pocket, his hand wash was taken and also

the shirt pocket was dipped in the sodium carbonate

solution, wherein it turned into pink colour. They prepared

panchanama as per Ex.P.3 and obtained signature of

P.W.1 as well as P.W.3-shadow witness. P.W.1 has further

deposed that he identified his signature in the complaint,

entrustment mahazar and seizure mahazar. He has also

identified the M.O.1-cash of Rs.1,000/-, M.Os.2 to 6-the

bottles containing sodium carbonate solution, M.O.7-shirt,

M.O.8-Sodium Carbonate powder, M.O.9-cleaned water

bottle and M.O.10-voice recorder, as it was seized by the

investigation officer to switch on to record the conversation

between the accused and the complainant-P.W.1.

18. During the cross examination, the learned

counsel for the appellant-accused confronted Ex.D.1-'J' slip

issued by the Sub Registrar and Ex.Ds.2 and 3-mutation

(form Nos.21 and 12 respectively) and the report prepared

by the accused as on 26.11.2005, and it was suggested

that the work was already completed by the appellant-

accused as on 26.11.2005 and there was no work pending

with him in order to demand the money. The said

suggestion was denied by P.W.1. Further, it was

suggested to P.W.1 that there were some villagers present

near the Janatha Colony and he denied the statement

given by him as per Ex.P.7. P.W.1-complainant also

denied the suggestion made by the learned counsel for the

appellant-accused that P.W.1-complainant already got

transferred the khathas in respect of some other lands and

there was enmity between the complainant and the

accused, where the accused refused to give the second

ration card and therefore, he has been falsely implicated in

the case. Another contention taken by the learned counsel

for the appellant-accused was that the accused requested

for loan and hence, the loan amount was paid by the

complainant and therefore, it was not the bribe amount

and the same was also denied by the P.W.1-complainant.

19. Perusal of the evidence of P.W.1 shows that the

learned counsel for the appellant-accused was not able to

shake the evidence of P.W.1 in respect of demand and

acceptance of bribe by the accused.

20. To corroborate the evidence of P.W.1, P.W.3 -

who is the shadow witness and also an official witness, and

who had accompanied the complainant, has also stated

that the police called him to police station and prepared

panchanama after complaint made by the P.W.1 as against

the accused for demand of bribe for issuing the report for

getting the khatha. The demo panchanama was identified

by him and his signature was also identified by him.

Further P.W.3 speaks that the police along with the

complainant went to the village panchayath office, where

the accused was not present in the office and then, himself

and P.W.1 went to the place where the accused was in the

field at Janatha colony. The accused asked money from

P.W.1 and P.W.1 handed over the cash of Rs.1,000/- which

was counted by accused and kept in his pocket. He has

identified it as Ex.P.3 and his signature as per Ex.P.3(b).

He also speaks about the seizure of the cash and the wash

of the appellant-accused and shirt pocket of the appellant-

accused turned into pink when dipped into sodium

carbonate solution. P.W.3 also identified bottles M.Os.2 to

6. The evidence of this witnesses was also not able to be

destroyed by the learned counsel for the appellant-accused

in the cross examination, except a little contradiction in

respect of the receiving money by the appellant-accused

counting the cash and not counting the cash, but he has

received the money and kept the cash in his shirt pocket.

21. The learned counsel for the appellant has

contended that there is contradiction in respect of

receiving the cash and counting it and keeping in the

pocket. P.W.1 has stated that the accused has received

the money and kept it in his shirt pocket, whereas P.W.3

has deposed that the accused counted cash after its

receipt and he kept it in shirt pocket. In respect of

receiving the money by the accused, both the witnesses

have categorically stated that the accused received money

in his hand. If it is counted or not, is not a material

discrepancy in the evidence. P.W.1 has not stated that the

amount was counted by the accused, and P.W.3 has stated

that it was counted by accused. Therefore, to corroborate

the evidence of P.W.3, both the hands of accused were

dipped in sodium carbonate solution and the hands of the

accused turned into pink which suggests that the accused

not only received the money but he has counted in both

the hands and kept it in shirt pocket. Further more, M.O.7

is the shirt of the accused seized by the police, when the

shirt pocket was also dipped in the solution, it turned pink,

therefore, accepting money has been proved by the

prosecution. It is not disputed by the appellant-accused

that he has not received money and he has stated that he

has received money by way of loan from the complainant.

Once the accused has admitted the receipt of cash, the

question of deviating from the acceptance, cannot be

acceptable. Furthermore, the accused has stated in the

explanation that he received the money as hand loan.

Therefore, the contention of the appellant's counsel cannot

be acceptable that the accused has not accepted the

money. On the other hand, the acceptance of money has

been sufficiently proved by the prosecution.

22. That apart, from the evidence of P.W.1 and

Ex.P.1 complaint, there was demand by the accused for

recommending for change of khatha. Once again on

20.11.2005, the accused demanded and finally, on

28.11.2005, he asked the complainant about the money

and accepted it. To corroborate the evidence of P.Ws.1

and 3, the investigation officer-P.W.4 has also stated about

the receipt of bribe, lodging of complaint, registration of

FIR, setting up trap and raid and catching the accused red-

handed, thereby, the demand and acceptance has been

proved by the prosecution.

23. Though the learned counsel for the appellant

has contended that there was no work pending with the

appellant, in this regard, the accused himself got marked

Exs.D.1 to D.3 wherein the Ex.D.1 is 'J' slip and Ex.D.2 is

form No.21 in which the appellant prepared the report as

on 26.11.2005 but he had not sent it to the Revenue

Inspector and it was kept pending for two days till

28.11.2005. P.W.2-Sanctioning Authority has also stated

that the work was pending with the accused. Admittedly,

the accused notified in respect of issuing khatha as on

26.10.2005 and he waited for 30 days in accordance with

law and prepared the report on 26.11.2005, but not sent

the same to the Revenue Inspector and kept the file

without sending the same. Therefore, it cannot be said

that the work was not pending with him. Of course, the

appellant/ accused is not the authority to issue khatha, but

he is the person who makes the local inspection and

recommend for issuing the khatha as he is the village

accountant and a field worker. Such being the case,

Exs.D.1 to D.3 will not come to the aid of the accused, on

the other hand, it goes against him.

24. As regards the sanction accorded by P.W.2-

Selvakumar, who was the Deputy Commissioner, he has

categorically deposed that he had verified all the

documents sent by the investigation officer and accorded

permission. Ex.P.4 is the sanction order where P.W.2

considered the names of witnesses and documents sent by

the investigation officer. After considering the entire

statements and the documents and the work pending with

the accused, he has accorded sanction in accordance with

law. Therefore, it cannot be said that there is non

application of mind by P.W.2, on the other hand, the

sanction is acceptable one.

25. P.W.4 is investigation officer who conducted

investigation, and filed charge sheet. The FSL report is at

Ex.P.9. Seizure panchanama is at Ex.P.6 and evidence of

P.W.1, 3 and 4 corroborates in respect of seizing the cash

and the hands of the accused turning into pink and the

same collecting in the bottle.

26. In respect of M.O.10-voice recorder, obviously,

it was marked as the voice recorder, but it must be the

tape recorder. It was not audible when it was played at

the time of seizure panchanama and therefore, the

investigation officer did not send the voice recorder to the

FSL. Therefore, even without the audio cassette, the

evidence of P.Ws.1 and 3 corroborates each other in

respect of demand and acceptance of the bribe money by

the accused. In my considered view, the prosecution

proved beyond reasonable doubt regarding demand,

acceptance and pendency of work with the appellant-

accused and therefore, he has committed the offence of

demanding bribe and misconduct punishable under Section

7 and Section 13(1)(d) read with Section 13(2) of P.C. Act.

Therefore, in my considered opinion, the findings of the

trial Court in respect of the guilt of the appellant-accused

does not call for interference by this Court.

27. However, in respect of the sentence passed by

the trial Court, the appellant/accused was sentenced to

undergo one year imprisonment and to pay fine of

Rs.5,000/- for the offence punishable under Section 7 of

the P.C. Act and three years of imprisonment and fine of

Rs.20,000/- for the offence punishable under Section

13(2) of the P.C. Act.

28. In this regard, the learned Senior Counsel for

the appellant has contended that the age of the petitioner

is more than 73 years and he is retired in the year 2007

itself and therefore, prayed for reducing the sentence.

29. As per the unamended P.C. Act, the minimum

sentence prescribed for the offence punishable under

Section 7 of P.C. Act is six months and one year for the

offence punishable under Section 13(2) of the P.C. Act.

Looking at the age of the accused and the amount of bribe

was Rs.1,000/-. Hence, I am of the view that the sentence

awarded by the trial Court is little disproportionate to the

offence committed by the appellant. Therefore, it can be

reduced to the minimum sentence as prescribed under

Sections 7 and 13(2) of the P.C. Act.

30. Accordingly, the appeal is allowed in part.

The findings of conviction passed by the trial Court is

hereby upheld. However, the sentence of imprisonment is

modified and reduced as under:

(i) The appellant is sentenced to undergo rigorous

imprisonment for six months and to pay fine of Rs.5,000/-,

in default of payment of fine, he shall undergo simple

imprisonment for one month for the offence punishable

under Section 7 of P.C. Act.

(ii) The appellant is also sentenced to undergo

imprisonment for one year and to pay Rs.20,000/-, in

default of payment of fine, he shall undergo 3 months

simple imprisonment for the offences punishable under

Section 13(1)(d) read with Section 13(2) of P.C. Act.

(iii) Both the sentences are ordered to run

concurrently.

Sd/-

JUDGE

Akv/Cs