K K Sangamesh vs State By Lokayukta Police
2023 Latest Caselaw 3487 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF JUNE, 2023

                           BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

            CRIMINAL APPEAL NO.506 OF 2011

BETWEEN:

K K SANGAMESH
VILLAGE ACCOUNTANT
HUSKUR VILLAGE CIRCLE,
ANEKAL TALUK,
BANGALORE RURAL DISTRICT
BANGALORE
R/AT KOTE BEEDI,
ATTIBELE VILLAGE,
ANEKAL TALUK,
BANGALORE DISTRICT
BANGALORE
                                            ... APPELLANT
       (BY SRI MURTHY D. NAIK, ADVOCATE
        FOR SRI MAHENDRA G., ADVOCATE)

AND:

STATE BY LOKAYUKTA POLICE
REP BY STANDING COUNSEL AND
SPL PUBLIC PROSECUTOR FOR KLA CASES IN
THE HON'BLE HIGH COURT OF KARNATAKA
BANGALORE
                                          ... RESPONDENT
       (BY SRI B.S. PRASAD, SPL.P.P.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE CONVICTION
SENTENCE DATED 28.4.2011 PASSED IN SPL. CASE
NO.90/2006 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE -
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CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988
AND THE APPELLANT/ACCUSED IS UNDERGO R.I. FOR A
PERIOD OF TWO (2) YEARS AND ALSO TO PAY A FINE OF
RS.10,000/- (TEN THOUSANDS) AND IN DEFAULT TO PAY THE
SAME TO FURTHER UNRDERGO SIX MONTHS OF R.I., FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ
WITH SECTION 13(2)OF PREVENTION OF CORRUPTION ACT,
1988.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 1.6.2023 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 passed by the Special Judge

Bangalore Rural District in Spl.C.No.90/2006 for having

found guilty and convicted for the offence punishable

under Sections 7, 13 (1)(d) read with 13 (2) of Prevention

of Corruption Act (herein after referred as PC Act).

2. Heard the arguments of learned counsel for

appellant and special counsel for respondent.

3. For the sake of convenience the ranks of the

parties before the trial court is retained.

4. The case of the prosecution is that the

Lokayuktha police filed charge sheet against accused for

the above said offences on the complaint filed by one

PW3/Maddurappa as per Ex.P7 wherein he has alleged the

accused was Village Accountant working at Huskur village

and the complainant approached him for change of Khatha

in respect of land bearing Sy.No.117 of Gulimangala village

from his father name to his name. Whereas the accused

has demanded Rs.7000/- as bribe amount for doing the

work and the complainant was not willing to pay the bribe

amount, hence he lodged complaint to the Lokayuktha

police. In turn the Lokayuktha police registered a case in

Crime No.1/2006 for the above said offence and a trap was

prepared the amount of Rs.5000/- sent through the PW3

and PW1 sent as shadow witness on 3.1.2006 when the

accused accepted the cash he was caught red handed and

the same was seized by the police under the panchanama

as per Ex.P2 and accused was arrested he was produced

before the Court and after completion of investigation

charge sheet came to be filed. The accused pleaded not

guilty, when the charges were framed and claimed to be

tried. Accordingly, to prove the case, the prosecution

examined 6 witnesses and got marked 16 documents and

8 material objects. After closing of evidence the statement

of accused under Section 313 of Cr.P.C was recorded. The

case of the accused is one of the total denial and he has

marked D1 to D3 in the cross examination but not entered

to the witness box. After hearing arguments the trial court

found guilty and convicted and sentenced to undergo

rigorous imprisonment of two years and to pay fine of

Rs.10,000/- in default he shall further undergo 6 months

imprisonment vide order dated 28.4.2011.

5. Being aggrieved by the judgment of conviction

and sentence passed by the trial court the appellant

preferred this appeal.

6. The learned counsel for the appellant has

contended the judgment of conviction and sentence passed

by the trial court is liable to be set aside as the appellant is

only a Village Accountant. He has no authority to issue

Khata, there is inconsistency in respect of evidence of PW1

and PW3. PW3/complainant totally turned hostile and not

supported the prosecution case. The trial court convicted

the appellant only on the basis of PW1, shadow witness.

He has stated that he did not ascertain the contention of

the complainant filed by the PW3 and he was away from

PW3 and statement of eye witnesses were not recorded by

the investigating officer. He further contended that the

PW2 panch witness says the amount was received by PW1

but not the accused. The sanction authority has issued the

sanction without proper application of the mind. The

sketch prepared by PW5 reveals and contradicts with

evidence of PW1. Hence prayed for allowing the appeal.

7. Learned counsel further contended that as on

date of filing complaint on 3.1.2006 there is no official

work pending with the appellant and even otherwise the

complainant was not the applicant and his brother was

applicant. His brother was not examined by the

prosecution. Therefore, the evidence is insufficient to

prove the guilt of the accused. The learned counsel further

contended there is an error in framing of charge as the

specific offence shall be mentioned in the charge as

required under Section 211 (4) of Cr.P.C Section 13 of PC

Act alone mentioned in the charge which is only a

punishment column, but there was no clarity in the offence

committed by the accused hence prayed for allowing the

appeal.

8. Per contra, learned Special Counsel for

respondent has supported the judgment of the trial Court

and contended that the prosecution is successful in proving

the case where the accused has accepted the bribe amount

after demand. He contended that the accused is the

person who sends report to the Revenue Inspector and he

demanded bribe and while receiving the same, he has

been trapped. Even though P.W.3-the complainant has

turned hostile, but the shadow witness P.W.1 and panch

witnesses and the investigation officer who received the

complaint, have categorically stated about the demand and

acceptance of the bribe by the accused and they have

supported the case of prosecution. Even though P.W.3 has

turned hostile, the prosecution is successful in proving the

guilt of accused by adducing the circumstantial evidence.

The learned Special Counsel has also contended that the

appellant has not disputed the sanction granted and the

sanctioning authority, by application of mind, has accorded

the sanction. Therefore, it is argued that the contention

of the appellant shall not be accepted. The learned

Special Counsel further contended that in respect of

charge, Section 13 of PC Act, the same is curable under

section 465 of PC Act. Merely, non mentioning of the Sub-

section is not a ground to set aside the order and the same

will be only an irregularity and that can be cured by

Section 464 of Cr.P.C. He further contended that in respect

of receiving the amount by the accused as per the

evidence of P.W.2, that is only an error and that has

clarified in the evidence of P.W.2 and Ex.P.C1 has been

marked. In support of his case, the learned Special

Counsel has relied upon the judgment of the Hon'ble

Supreme Court in case of NEERAJ DUTTA Vs. STATE

(GOVT. OF N.C.T. OF DELHI) reported in 2022 SCC

OnLine SC 1724 and therefore, prayed for dismissing the

appeal.

9. Having heard the arguments and on perusal of

the records, the points that arise for my consideration are:

"1) Whether the prosecution proves beyond reasonable doubt that the accused being Village Accountant demanded Rs.10,000/- as bribe and received Rs.5,000/- as advance from PW.3 in his house on 03.01.2006, thereby, he has committed offence punishable under Section 7 of the P.C. Act?

2) Whether the prosecution further proves that the accused misused the official position, demanded and accepted the

bribe for doing official favour, thereby, committed the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act?

3) Whether the judgment of the trial Court call for interference?"

10. The prosecution examined 6 witnesses as per

PWs.1 to 6 and got marked 16 documents as per Exs.P.1

to 16 and 8 M.Os.

11. PW.3 is the complainant who has filed a

complaint to the Police regarding demand of bribe by the

accused for transferring the Khata and he has filed a

complaint as per Ex.P.7. But this witness turned hostile,

not supported the prosecution case, that, after treating

him as hostile and cross-examined by the Special Public

Prosecutor, he has denied the demand made by the

accused and also filing the complaint to the Police

producing Rs.5,000/- to the police and the same was

handed over to the accused where the police caught the

accused red handed and totally he has turned hostile. In

the cross-examination by the learned counsel for the

accused, he has produced Ex.D.1 stating that his brother

Andappa has given application for change of Khata and he

do not know that the khata was changed on 29.12.2005 as

per Ex.D.2 and he has denied that the he has seen MOs.2

to 7. Therefore, the evidence of PW.1 who is the

complainant set the law into motion and handed over the

bribe to the accused was totally turned hostile.

12. PW.1 who is a shadow witness has supported

the prosecution case, he has spoken about the police

summoning to the Police station introduced the

complainant and the complainant filed the complaint to the

police against the accused for demanding bribe for

changing khata. He further speaks that the complainant

produced Rs.5,000/-, the police smeared the

phenolphthalein powder and making note of the currency

note numbers, the cash was handed over to CW.3 and

thereafter, the said amount was kept in the pocket of the

complainant, then the hand of CW.3 was washed with

sodium carbonate solution which was turned into pink.

Then, the police instructed that the amount shall be paid

to the accused only if there is demand and not otherwise.

They prepared the demo panchanma as per Ex.P.1, then

they went to the office of the accused, but he did not came

to the office, hence, PW.3 telephoned to the accused and

the accused told to come to his house at Attibele. Hence,

the complainant himself and police team went near the

house of the accused, then himself and PW.3 went inside

the house. The accused received money and kept in the

drawer, then signal was given to the police, the police

came and caught red handed. The hand of the accused

was washed in sodium carbonate solution, it turned into

pink and the police seized the same under the panchama.

He has identified the money as MO.1. They prepared the

panchanama as per Ex.P.2 and took the photographs as

per Ex.P.3. They also taken photo of house of the accused

as per Ex.P4. They also seized the sodium solutions as per

MOs.2 to 7. The accused also given explanation as per

Ex.P.5. and in the cross-examination, the learned counsel

for the accused has nothing elicited to disbelieve the

evidence of this witness except admitting that he do not

know who has typed the complaint and he has not

ascertained the date and place of the demand by the

accused for bribe and he has stated he did not ascertain

who has written the contents of the complaint.

13. He further admits that the accused informed to

the investigation officer that he has not demanded any

money and money is paid under pressure and it is

dropped in the drawer. The evidence of this witness is re-

appreciated after mentioning the evidence of other

witnesses.

14. P.W.2-Girish Ramanna, a panch witness to the

demo panchanama, has deposed that as directed by his

superior, he went to Lokayuktha office, where the

complainant and P.W.1 were present. The investigation

officer introduced the complainant to him. The complaint

was read over to them and thereafter, panchanama was

prepared. The sodium carbonate solution was also

prepared and the complainant produced 10 notes of

Rs.500/- denomination. He noted down the numbers in

Ex.P.6. P.W.1 directed to check the pocket of the

complainant and it was empty. Then the tainted notes

were given to P.W.3 through him. Then his hand was

washed in the solution, it was turned into pink and he has

identified the panchanama as Ex.P.1. Then at 1.15 pm.

they left to Huskur. The vehicle was parked near the house

of Maddurappa, P.W.1 and C.W.1 went to the house of

C.W.1. The accused did not come upto 5.30, then the

complainant made phone call to the accused and the

accused replied that he is in the house and asked them to

come over to his house. Then at 6.30 p.m., they went to

the house of accused. The vehicle was parked at a

distance. P.W.1 and the complainant went to the house of

the accused. The investigation officer instructed the

complainant to pay only on demand. Then at 7.45 p.m.,

the complainant gave signal by rubbing his face with towel.

15. P.W.2 has further deposed that, thereafter, the

complainant identified the accused as Purushotham and

the said about Purushotham receiving the money.

Thereafter, the investigation officer asked AGO-accused

about receiving the money. The amount was found in the

table drawer, it was collected by the investigation officer

and compared with currency notes and confirmed. The

hand of the accused was washed which turned into pink

and the water was collected in the empty bottles. Then,

phone call was made to Tahsidlar. Thereafter, the accused

was brought to the police station and prepared

panchanama as per Ex.P.2. A seal was given to him and

the same was marked as M.O.8. He further deposed that

when the investigation officer asked the complainant, he

said that Purushotham demanded and received money.

When the investigation officer asked Purushotham, he said

that under force, the money was pressed into the drawer

and the said Purushotham has replied as per Ex.P.5. P.W.2

has also deposed that he signed the photographs which

were taken during panchanamas and he has identified the

same as per Exs.P.3 and 4 series. This witness who stood

outside along with investigation officer said that the name

of the accused was Purushotham and he received the

money, but, in fact, Purushotham is P.W.1, who is a

shadow witness and the name of the accused is

Sangamesh.

16. In the cross examination, the learned counsel

for the accused suggested that he was not present at the

time of preparing panchanama and P.W.2 has denied the

same. P.W.2 has further denied that there was no

material in the mahahazar to support the version which

was stated by him. P.W.2 had admitted that he has not

stated as per the evidence that is marked as Ex.C.1 that

Purushotham received money, but he has stated

Sangamesh has received money, but not Purushotham. As

per his evidence, though he has stated in examination in

chief that the accused Purushotham received money, but

clarified in the cross examination that the accused

Sangamesh received money, but not Purushotham.

17. P.W.4, the Deputy Commissioner of Urban who

has accorded sanction for prosecuting the case against the

accused as per Ex.p.11. The lengthy cross examination

made by the learned counsel for the accused, but nothing

elicited to disbelieve the evidence and the sanction granted

by this witness for prosecuting the matter.

18. P.W.5 Hari, who is Junior Engineer of P.W.D,

who prepared spot sketch in the house of accused as per

Ex.P.12. Except the suggestion that from the watching

point, if one cannot see the places ABC and nothing

elicited.

19. P.W.6 Mahamad Jafer, police inspector and

investigation officer, who has deposed that he recevied

complaint from P.W.3 and registered FIR in crime

NO.114/2006 and issued FIR as per Ex.P.13. He

summoned two witnesses P.W.1 and 2 and introduced

complainant to the witnesses , prepard panchanama, note

down the note number and given instruction to pancha

witness 1 and 3 to hand over the cash to the accused only

on demand and also speaks about the seizure of the cash

from the drawer of the accused in his house. After

investigation, he filed charge sheet.

20. On perusal of the entire evidence on record, it is

an admitted fact that p.w.3 was the complainant turned

hostile and not supported the prosecution. The only

evidence available to the prosecution is p.w.1 a shadow

witness, p.w.6 police officer, who reiterated FIR and laid

the raid seizing the cash from the accused and filed charge

sheet. The learned counsel for the respondent has

contended that even if the complainant turned hostile, the

prosecution is successful in proving the demand and

acceptance of the accused in proving the complaint as per

cash seized from the accused and relied upon the

judgment of the Hon'ble Supreme Court in Neeraj Datta's

case supra.

21. The Hon'ble Supreme Court in the case of

Neeraj Dutta stated supra has held at paragraph No.68(f)

as under:

"(f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant."

22. In the above said case, the Hon'ble Supreme

Court has categorically held that when the complainant

turned hostile or died, the prosecution can prove the case

by adducing the evidence of other witnesses by way

circumstantial evidences. Here in this case, PW.3 has

turned hostile in respect of demand and acceptance of

bribe by the accused and on the other hand, the

prosecution able to prove the demand and acceptance by

way of evidence of PW1-Purushotam who is a shadow

witness as well as panch witness to the entrust

panchanama and PW.2, another panch witness to the

entrust panchanama and later, he has accompanied the

Investigating Officer while raid. The Police Officer- PW.6

who received the complaint and registered the FIR have

categorically stated that on 03.01.2006, the complainant-

PW.3 came to the Police Station and lodged the complaint

as per Ex.P.7. After receiving the complaint, the case was

registered in FIR which is marked as Ex.P.13. Later the

Investigating Officer summoned PWs.1 and 2 who are the

official witnesses from the Government Department where

PW.6 introduced the complainant to PWs.1 and 2 and they

demanded bribe by the accused for changing the khata

and the contents of FIR has been read over to PWs.1 and 2

which was proved by the prosecution through demo

panchanama marked through PWs.1 and 2 as per Ex.P.1.

The signature of PWs.1 and 2 marked as Exs.P.1(a) and

1(b) and both these witnesses have clearly stated that the

complaint filed by PWs.3 and 6 also deposed regarding

preparing the panchanama-Ex.P.1. PWs.1, 2 and 6 were

categorically stated during the demo panchanama, the

complainant brought cash i.e., the tainted money and

phenolphthalein powder has been smeared, then, it was

counted by the witness and kept in the pocket of the

complainant, thereafter, the hand of the witness was

washed in the carbonate sodium which was turned into

pink and the Investigating Officer instructed that if the

accused accepted the money, then his hand will be turned

pink if it is washed with the sodium carbonate solution.

Thereby, the prosecution able to prove from the evidences

of PWs.1, 2 and 6 and Exs.P.1 and 7, the factum of

previous demand has been proved.

23. As regards to the raid and trap proceedings,

PW.1 has categorically stated that he went along with the

complainant as a shadow witness where the accused asked

the complainant to come home, accordingly, the raiding

party went near the house of the accused and then sent

PWs.1 and 3 for handing over the money and PW.1 has

stated the accused received money and kept in his table

drawer and subsequently, PW.3 gave signal and

immediately, the Police Officer along with PW.2 came and

trapped the accused and washed his hand in the sodium

carbonate solution and it turned into pink. The Police

prepared the panchanama as per Ex.P.2 and the photos

were taken as per Ex.P.4 and he has identified the sodium

solution as per M.Os.2 to 7 and M.O.1 is the cash

recovered from accused No.1. P.Ws.1, 2 and 6 have

categorically deposed that cash has been accepted by the

accused and he was trapped.

24. From the evidence of P.Ws.1, 2 and 6 and

Ex.P.1 and P.2-Panchanama and P.4-photographs and pre

trap panchanama and seizure panchanama and material

objects, the prosecution has proved the factum of demand

and acceptance of bribe by the accused by way of

circumstantial evidence, even though P.W.3 complainant

turned hostile. In view of the judgment of the Hon'ble

Supreme Court in Neeraj Datta's case, I hold that the

prosecution has proved the factum of demand and

acceptance of bribe of Rs.5,000/- by the accused in his

house and the same was seized from the drawer of table

and the hand wash of the accused was also turned pink

colour.

25. As regards to the sanction, there is no serious

dispute by the appellant's counsel, in view of the fact that

the prosecution proved the guilt of the accused by way of

circumstantial evidence and he was the village accountant

and he was the person who was responsible for verifying

the spot and giving report. Though the complainant stated

that his brother filed an application for issuing khatha etc,

but the fact remains that the accused called the

complainant to his house and accepted the bribe amount

to do the favour. Therefore, the trial Court by considering

the evidence on record, has rightly found the appellant-

accused guilty and convicted him for the offences

punishable under Sections 7, 13(1)(d) and 13(2) of the PC

Act.

26. However, the trial Court has not awarded any

separate sentence even though the offence under Section

7 of the PC Act is punishable with minimum imprisonment

of 6 months and extended up to 5 years and the offence

under Section 13(2) of the Act is punishable with minimum

imprisonment of 1 year which is extended up to 7 years.

The trial Court awarded the common punishment of two

years, without bifurcating the sentences. Therefore, it is

required to be modified.

Accordingly, I pass the following order:

       (i)     The appeal is allowed in part.

       (ii)    The appellant is sentenced to undergo rigorous

imprisonment for the period of six months and pay fine of

Rs.5,000/- and in default of payment of fine, he shall

undergo simple imprisonment for two months.

(iii) The appellant is further sentenced to undergo

one year rigorous imprisonment and pay fine of

Rs.10,000/-, and in default of payment of fine he shall

undergo simple imprisonment for three months.

(iv) Both the sentences are ordered to run

concurrently.

(v) The appellant is entitled to set off, if any,

under Section 428 of Cr.P.C.

Sd/-

JUDGE

AKV/CS/GBB