Manjegowda S/O Late Gunde Gowda vs State By Lokayuktha Police
2023 Latest Caselaw 3630 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF JUNE, 2023

                         BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

             CRIMINAL APPEAL NO.1285 OF 2011
BETWEEN:

MANJEGOWDA
S/O LATE GUNDE GOWDA
AGED ABOUT 52 YEARS
D GROUP EMPLOYEE
DISTRICT PHYSICALLY HANDICAPPED
WELFARE OFFICE, HASSAN
NATIVE OF KAMASAMUDRA VILLAGE
HALEKOTE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT                            ... APPELLANT

       (BY SMT. PRAMILA NESARGI, SENIOR ADVOCATE
        FOR SRI V VISWANATH, ADV.)

AND:

STATE BY LOKAYUKTHA POLICE
HASSAN
REPRESENTED BY
LERANED PUBLIC PROSECUTOR
                                         ... RESPONDENT
       (BY SRI B.S. PRASAD, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGEMENT AND
ORDER DATED 2.12.2011 IN SPL.CASE NO.56/2008 PASSED BY
THE PRL. SESSIONS JUDGE AND SPECIAL JUDGE, HASSAN -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH
SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT,
1988 AND ETC.
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     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 12.6.2023 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 the order of sentence passed by the

Principal Special Judge and Sessions Judge, Hassan, in

Special Case No.56/2008 dated 2.12.2011 for having

found him guilty, convicted and sentenced to undergo

rigorous imprisonment for one year and to pay fine of

Rs.3,000/-, in default of payment of fine, he shall undergo

simple imprisonment for two months for the offences

punishable under Sections 7, 13(1)(d) read with Section

13(2) of Prevention of Corruption Act, (hereinafter referred

to as 'PC Act'.)

2. Heard the arguments of learned Senior counsel

for the appellant and learned Special Counsel for the

respondent.

3. The rank of the parties before the trial Court is

retained for convenience.

4. The case of the prosecution is that on the

complaint of P.W.1-K.S. Markandaiah, the Lokayuktha

police registered FIR in Crime No.1/2007. It is alleged that

the complainant is a physically handicapped person, he has

obtained a confessional KSRTC bus pass till 2005 and it

was expired. In order to renew the bus pass, he

approached the KSRTC authorities, but the said authorities

directed him to send the application through the

Department of Women and Child Welfare. Hence, he

approached the Department of Women and Child Welfare

on 05.01.2007 where the accused was working in the said

department. The accused demanded Rs.800/- for getting

renewal of the pass. The complainant said to have paid

Rs.50/- and he has not willing to pay the bribe. Hence, he

lodged the complaint. The accused also asked the

complainant to come and collect the bus pass after making

payment of Rs.750/-. A trap was set up by the police, the

accused was caught red handed when he was accepting

the bribe of Rs.750/- on 20.01.2007. Then, after

investigation, the police filed charge sheet. The charge

was framed against the accused and he pleaded not guilty

and claimed to be tried.

5. The prosecution, in all, examined 8 witness, got

marked 29 documents and 19 Material objects. The

statement of the accused under Section 313 of Cr.P.C. was

recorded. The case of the accused was one of the total

denial, but he has given explanation before the

investigation officer that the complainant is the known

person to him, he is from the village, he has repaid the

loan amount and the accused has not entered any defence.

After hearing the arguments of the learned counsel for the

parties, the trial Court convicted the accused as stated in

para.1 of the judgment.

6. The learned Senior Counsel for the appellant has

contended that the appellant-accused is neither an officer

nor an authority to issue the bus pass. He is only a peon

in the Department of Women and Child Welfare. The bus

pass was already expired. As per the evidence of P.W.3-

an officer of the Department of Women and Child Welfare,

the application was forwarded on 08.01.2007 itself, and

there is no work pending with the appellant accused. The

police have falsely implicated the appellant-accused in the

case. There are contradictions in the evidence of

prosecution witnesses. Therefore, prayed for allowing the

appeal. The learned Senior Counsel has also alternatively

argued that the appellant-accused was dismissed from

service in the year 2013 itself. He is having two wives and

four children, he is very poor man, he has undergone

mental agony and ordeals of the court proceedings for 15

years. Therefore, awarding sentence and sending him to

jail will not serve any purpose. Hence, prayed for

releasing him by giving set off as he has undergone the

ordeals of trial.

7. The learned Special counsel for the respondent

has supported the judgment of conviction and the order of

sentence passed by the trial Court and contended that the

appellant-accused was caught red handed for accepting

money and it was seized from his purse, hand wash turned

into pink colour, the photo of the complainant, the copy of

renewal letter issued by P.W.3 were all in possession of the

accused, which reveals that the work was pending the

appellant-accused and he has demanded and accepted the

bribe. Therefore, the presumption is available in favour of

the prosecution under Section 20 of P.C. Act. Even

otherwise, work pending is not a criteria. Hence, prayed

for dismissing the appeal.

8. Having heard the arguments of learned counsel

for the parties, perused the records.

9. The points that arise for consideration are:

(i) Whether the prosecution proves that the

appellant-accused demanded bribe from the complainant

on 05.01.2007 for renewal of the concessional pass and he

was caught red handed while accepting Rs.750/- in order

to do the official favour which also amount not misconduct,

thereby, punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the PC Act?

(ii) Whether the judgment of conviction and the

order of sentence passed by the trial Court calls for

interference by this Court?

10. On perusal of the records, the prosecution

summoned 8 witnesses and 29 documents and 19 material

objects.

11. P.W.1 Markandaiah is the first informant. He has

given evidence before the trial Court by supporting the

case of prosecution. He has stated in the complaint-Ex.P.1

that he approached the KSRTC for renewal of the

concessional bus pass and thereafter, at the instructions of

the KSRTC, he approached the Department of Women and

Child Welfare for renewal of the said bus pass. P.W.1

deposed that he met the accused on 05.01.2007 and

requested for renewal of the bus pass. He also given and

handed over the demand draft for Rs.250/- along with two

photos. P.W.1 has also stated that after filing the

complaint, the police prepared demo panchanama and

instructed to give bribe amount on demand and sent along

with P.W.4 shadow witness. The accused accepted the

bribe amount and kept in his purse. The police

apprehended the accused and seized the cash. P.W.1

identified the cash as well as the complaint, seizure

panchanama and demo panchanama. He also deposed that

the hand wash of the accused was taken which turned pink

and the same was seized in the bottle. He identified

M.Os.1 to 3 which are the bottles containing liquid wash of

hands of the accused, M.O.4-purse of accused, M.O.5-ATM

card of the accused, M.Os.8 to 11 are the currency notes

consisting of Rs.500/-, Rs.100/- and Rs.50/- notes. P.W.1

has also deposed that the police took cotton and swiped

the purse, then dipped it into the solution which turned

into pink colour. During the cross examination, though

tried to impeach his evidence, nothing was elicited to

disbelieve the evidence of P.W.1. He has categorically

stated that he has visited the accused thrice.

12. P.W.2-K.E. Ibrahim, Junior Engineer, prepared

the spot sketch as per Ex.P.18 at the instruction of the

police. According to his evidence, he has prepared the

sketch.

13. P.W.3-Vasanthi Uppar is the officer of

Department of Women and Child Welfare. According to

her evidence, the accused was the D-group employee in

their department and he is entrusted to take the files and

hand over to the KSRTC or any other department. P.W.3

has given the document Ex.P.19 to the police where she

has stated that the complainant approached their office for

renewal of the bus pass and she has forwarded her opinion

to the KSRTC. She has deposed that, on 08.01.2007, she

has forwarded the documents and she has identified that

Ex.P.20 is the requisition letter. P.W.3 has also deposed

that, in 2007, she has not received any application from

the complainant and they are not receiving any demand

draft and it is not their duty to renew the bus pass. The

evidence of P.W.3 reveals that she has given the letter of

opinion for renewal of the bus pass of the complainant as

per Ex.P.20.

14. P.W.4-Shanthalingappa is a shadow witness. He

has given his evidence stating that the police called him to

the police station, introduced the complainant and P.W.5,

and prepared demo panchanama regarding the procedure

of trap, then handed over the cash to the complainant and

they instructed the complainant to give only on demand.

He has further deposed that, then, they went to the office

of the accused, he followed P.W.1 and met the accused

where the accused stated that the bus pass was not

available and it would be available only from 20th to 22nd,

and he asked the balance amount. Then the complainant

paid the balance amount which was accepted by the

accused and counted it and kept in his purse, then

thereafter, the accused was trapped by the police. He also

identified the cash and the panchanamas and the material

objects. During the cross examination, nothing was

elicited from P.W.4 to disbelieve his evidence.

15. P.W.5 Girish, a panch witness who had gone to

the police station with the investigation officer and he has

deposed that the police introduced the complainant and

demand of bribe amount was made by the accused and

prepared panchanama and they handed over the cash to

the complainant. He also speaks that they stayed along

with the investigation officer where P.W.1 and P.W.4 went

to see the accused and later, they were caught red

handed. The accused seized the cash and also identified

the seizure of the ATM card, money, the demand draft and

other documents from the accused. She also identifies the

photographs took by the police. During cross examination

except denial, nothing has been elicited for disbelieving the

evidence of the witness.

17. PW.6/Shivalingegowda who is the Director of

Women and Child Department he was accorded the

sanction to prosecute against the appellant. He has

deposed that he received the file regarding the complaint

trapping of the accused, then he has accorded the sanction

as per Ex.P25.

18. PW.7/Nanjegowda who is a photographer who

took the photo while demo panchanama and also trap

proceedings through video and he has produced the same

and it was marked as MO.17. He also identifies the

panchanama as per Ex.P24 for seizing the photos, nothing

elicited in the cross examination to disbelieve the

evidence.

19. PW.8/Rudramuni who is a Police Inspector of

Lokayuktha he has deposed that he received the

complaint, registered the FIR as per Ex.P26 and conducted

the demo panchanama. Thereafter, trapped the accused,

seized the cash and other materials. He has identified the

documents, cash and the sodium carbonate solutions and

accused. He has investigated the matter and filed the

charge sheet.

20. On perusal of the evidence of the PW1 and PW4

they have categorically stated the accused demanded the

bribe and received the tainted money of Rs.750/-. The

demand was proved by evidence of PW1, PW4, PW5 and

PW8 and Ex.P1 and P2. The evidence of PW3, who is the

officer of the Child and Women Development she

forwarded the application of the complainant, but the same

was seized from the accused under the seizure

panchanama while trapping the accused on the evidence of

PW4, PW5 and PW8 it is clear, the work was pending with

the accused. He has to collect the application from his

department and handed over to the KSRTC but the photos

of the complainant, the application, the DD, belonging to

the complainant were all seized from him. That clearly

reveals, at the time of trap the work was with the accused.

The prosecution proved the demand and acceptance from

evidence of PW1 and PW4 and seizure of the cash from the

accused from the evidence of PW1, PW4, PW5, PW7 and

PW8. The PW2 who prepared sketch of the spot, PW6 who

is sanctioning authority, all the evidence of PW1 to PW8

categorically stated against the accused and their evidence

cannot be disbelieved and nothing is elicited in the cross

examination. Thereby the prosecution successfully proved

the case against the accused for having committed the

offence which is punishable under Section 7 and Section 13

(1)(d) read with 13 (2) of PC Act. Therefore, the judgment

of the trial court is based upon the evidence and sound

principles fo law. It need not be interfered by this court as

there was no error or illegality.

21. However, the learned senior counsel argued that

the accused have undergone severe mental agony during

the trial and he had undergone ordeal of trial for more

than 15 years. He was dismissed from service and having

two wives four children, etc., and sought for setting aside

the sentence.

22. In support of the argument, the counsel relied

upon judgment of the Hon'ble Supreme Court reported in

CDJ 2015 SC 756 in similar case where Hon'ble Supreme

Court let off the accused where the accused undergone

ordeals of trial more than 27 years and he was in jail for

7½ months and was given set off.

23. In another case, in CDJ 2023 in Chattisgarh

High Court 044, while considering the adequacy of

sentence, enhanced the fine amount from Rs.10,000/- to

Rs.50,000/- as the age of the accused was more than 80

years .

24. In another judgment the Hon'ble Supreme Court

in CDJ 1973 SC 217 given set off for the terms of jail

already undergone by the accused.

25. Here in this case, the appellant was arrested

and he was produced before the special court and on the

same day he was released on bail. After the sentence, he

was released by the trial court by suspending the sentence

and high court also suspended the sentence and the

appellant never went to judicial custody either prior to the

judgment or after the judgment, he had enjoyed the bail

throughout. The appeal was filed by the appellant in the

year 2011 but the counsel not chosen to argue the matter

by filing any early hearing application. Though the matter

was continuously taken up by the court but the appellant

counsel not chosen to argue the matter and obtained the

adjournments frequently on the ground that counsel was

unwell and some time they remained absent.

26. In a recent case, the Hon'ble Supreme Court in

NEERAJ DUTTA Vs. STATE (GOVT. OF N.C.T. OF DELHI)

reported in 2022 SCC OnLine SC 1724 the Hon'ble

Supreme Court wherein it has held at para 18, that the

complainant as well as prosecution makes sincere efforts

to ensure that the corrupt public servants are brought to

books and convicted so that the administration and

governance become unpolluted and free from corruption.

The Hon'ble Supreme Court also relied upon the in an

earlier judgment in case of Swatantra Singh Vs state of

haryana (1997) 4 SCC 14 and AB Bhaskar rao vs CBI

(2011) 10 SCC 259 and held even the circumstantial

evidence is enough for convicitng the accused in PC Act

case.

27. In view of the judgment of the Hon'ble Supreme

Court, I do not find any leniency to be shown to the

accused for letting free for the offence punishable under

Sections 7 and 13(2) of the PC Act. As per the provision of

sections 7 and 13(2) of PC Act, the minimum punishment

for section 7 was 6 months which extended upto 5 years

and for the offence punishable under Section 13(2) the

minimum sentence of one year which is extended to 7

years. But the trial court not assigned any reason for

awarding one year for both the offences and it was

sentenced one year for both the offences. Therefore, even

if it is considered six months for the offence 7 of PC act

and one year for the 13(2) of PC Act, both the sentences

are ordered to run concurrently and it becomes maximum

punishment of one year.

Such being the case, no leniency shown to the

accused/appellant, I pass following order:-

The appellant filed by the appellants/accused is

hereby dismissed.

Sd/-

JUDGE

CS/AKV